EDiscovery:
copyright © Western Digital Corporation
Preserving, Requesting & Producing Electronic Information
by: Lisa M. Arent Robert D. Brownstone William A. Fenwick
© Copyright 1999, 2002, 2003 Lisa M. Arent and Fenwick & West LLP
6/11/03 updated version by Robert D. Brownstone
Hard copy of 12/5/02 version available at: 19 SANTA CLARA COMPUTER & HIGH TECH. L.J. 131 (Dec. 2002)
TABLE OF CONTENTS
Page
I. INTRODUCTION ...... 1 II. PRESERVATION AND COLLECTION OF ELECTRONIC DATA ...... 2 A. The Duty to Preserve Evidence ...... 2 1. Preservation Obligations in the Electronic Context...... 2 2. Nature and Consequences of Duty to Preserve ...... 4 a. Introduction ...... 4 b. Ethical Obligations...... 4 c. Sanctions ...... 4 d. Potential Criminal Penalties ...... 6 3. When the Duty Arises ...... 7 a. Pre-Litigation ...... 7 b. After Service of Complaint ...... 8 c. Once Discovery Process has Begun ...... 9 4. What Must be Preserved ...... 9 5. Attorney’s and Client’s Notification Obligations...... 10 B. Scope of Preservation Duty - "Deleted" Files and Back-up Tapes...... 13 1. "Deleted" Files...... 14 a. Introduction ...... 14 b. Court-Ordered Hard Drive Searches...... 14 c. Sanctions for Heinous Deletions ...... 17 2. Deleted Back-up Tapes...... 18 a. Background on Back-up Tapes...... 18 b. Failure to Cease Ordinary Recycling...... 19 c. Restoring & Searching Back-up Tapes ...... 21 C. Inspection of Opponent's Computer System ...... 25 D. The Logistics of Producing Electronic Information...... 27 1. Production of Compilations of Electronic Information...... 27 2. Compelling Creation of Electronic Information...... 27 3. Facilitating Opponent's Access of Electronic Information...... 29 4. Allocating Compilation and Production Costs ...... 32 III. PRACTICAL LITIGATION TIPS REGARDING ELECTRONIC DISCOVERY...... 36 A. Tips for Requesting Electronic Information from the Other Side...... 36 1. Overview/Strategy...... 36
i TABLE OF CONTENTS (continued) Page
2. Preservation Requests and Orders ...... 37 3. Considerations Particular to Electronic Information ...... 38 a. Specifically Request All Desired Types of Items...... 38 b. "Meet and Confer" Negotiations ...... 40 c. Details Of the Opponent's Computer System...... 41 4. Parameters of Seeking Court Intervention ...... 43 5. Assessing the Adequacy of Opponent's Electronic Production ...... 44 B. Tips for Responding to Electronic Information Production Requests...... 45 1. Respond to Preservation Requests...... 45 2. Advising Client of Duties to Preserve and Communicate ...... 45 3. Inventory and Search Your Client's Computer System ...... 45 4. Consider Retaining Back-Up Tapes ...... 46 5. Secure Information; Establish its Authentication Foundation...... 46 6. Considerations Regarding Copying or Inspecting Hard Drives ...... 47 IV. USING COMPUTER EXPERTS TO AID IN DISCOVERY AND TO ASSIST/SWAY COURT ...... 47 A. Benefits of Retaining a Computer Forensics Expert ...... 47 B. Relative Expertise of Opposing Experts...... 49 V. CONCLUSION ...... 51
ii TABLE OF AUTHORITIES Page(s)
CASES Abrams v. Enron Corp., et al. No. H-01-3630 (S.D. Tex. Nov. 13, 2001) (Amended Complaint) ...... 6
Adobe Systems, Inc. v. South Sun Prods., Inc. 187 F.R.D. 636 (S.D. Cal. 1999)...... 42
Aguimatang v. California State Lottery 234 Cal. App. 3d 769, 286 Cal. Rptr. 57 (1991)...... 3
Alexander v. FBI 194 F.R.D. 305 (D.D.C. 2000) ...... 29, 43, 50
Amalgamated Bank v. Lay, et al. No. H-01-3624 (S.D. Tex. Dec. 4, 2001)...... 6
Amsted Indus. “ERISA” Litig. 2202 WL 31844956 (N.D. Ill. Dec. 18, 2002) ...... 23
Anderson v. Cornejo 2001 U.S. Dist. LEXIS 2330 (N.D. Ill. March 6, 2001)...... 44
Anti-Monopoly, Inc. v. Hasbro, Inc. 1995-2 Trade Cases (CCH) ¶ 71, 1995 U.S. Dist. LEXIS 16355, 1995 WL 649934 (S.D.N.Y. Nov. 3, 1995) ...... 27, 29, 32, 49
Antioch Co. v. Scrapbook Borders. Inc. 210 F.R.D. 645 (D. Minn. 2002)...... 14, 16, 26, 27
Applied Telematics, Inc. v. Sprint Communics. Co. 1996 U.S. Dist. Lexis 14053 (E.D. Pa. Sept. 17, 1996)...... 10, 20
Armstrong v. EOP 1 F.3d 1274 (D.C. Cir. 1993)...... 4
Bills v. Kennecott Corp. 108 F.R.D. 459 (D. Utah 1985) ...... 33
Brand Name Prescription Drugs Antitrust Litig. 1995 U.S. Dist. LEXIS 8281 (N.D. Ill. June 15, 1995)...... 21, 32, 34
Braxton v. Farmer’s Ins. Group 2002 U.S. Dist LEXIS 18085 (N.D. Ala. Sep. 13, 2002)...... 33
i TABLE OF AUTHORITIES (continued) Page(s)
Bristol-Myers Squibb Securities Litig. 205 F.R.D. 437 (D.N.J. 2002) ...... 40
Byers v. Illinois State Police 2002 US Dist. LEXIS 9861 (N.D. Ill. June 3, 2002)...... 33
Carbon Dioxide Indus. Antitrust Litig. 155 F.R.D. 209 (M.D. Fla. 1993)...... 42
Cedars-Sinai Medical Center v. Superior Court 18 Cal. 4th 1, 74 Cal. Rptr. 2d 248 (1998) ...... 8, 9
Chambers v. Nasco, Inc. 501 U.S. 32 (1991)...... 37
China Ocean Shipping Co. v. Simone Metals Inc. 1999 U.S. Dist. LEXIS 16264 (N.D. Ill. Sept. 30, 1999) ...... 9
Cobell v. Norton 2002 U.S. Dist. LEXIS 5291 (D.D.C. Mar. 29, 2002)...... 22
Coca-Cola Bottling Co. v. Superior Court 233 Cal. App. 3d 1273, 1293 n.10, 286 Cal. Rptr. 855 (1991) ...... 9
Crown Life Ins. Co. v. Craig 995 F.2d 1376 (7th Cir. 1993)...... 3
Danis v. USN Communics., Inc. 2000 WL 1694325 (N.D. Ill. Oct. 23, 2000) ...... 9, 13, 41, 42
DeLoach v. Philip Morris Cos. 206 F.R.D 568 (M.D.N.C. 2002)...... 39
Dendrite Int'l, Inc. v. Doe No. 3 342 N.J. Super. 134 (N.J. App. Div. 2001)...... 4
Dodge, Warren & Peters Ins. Servs., Inc. v. Riley 105 Cal. App. 4th 1414, 130 Cal. Rptr. 2d 385 (4 Dist. 2003)...... 10, 16
Doe v. 2TheMart.com Inc. 140 F. Supp. 2d 1088 (W.D. Wash. 2001) ...... 4
Fennell v. First Steps Designs, Ltd. 83 F.3d 526 (1st Cir. 1996) ...... 15, 25, 49
ii TABLE OF AUTHORITIES (continued) Page(s)
Gates Rubber Co. v. Bando Chemical Indus., Ltd. 167 F.R.D. 90 (D. Colo. 1996) ...... 15, 17, 50
Giardina v. Lockheed Martin Corp. 2003 WL 1338826 (E.D. La. Mar. 14, 2003) ...... 18
GTFM, Inc. v. Wal-Mart Stores 2000 U.S. Dist. LEXIS 3804 (S.D.N.Y. Mar. 30, 2000) ...... 30, 34
Guillen v. Pierce County 144 Wash. 2d 696, 31 P.3d 628 (2001) ...... 31
Henderson v. Nat'l R.R. Passenger Corp. 113 F.R.D. 502 (N.D. Ill. 1986) ...... 28
Hill v. McHenry 2002 U.S. Dist. LEXIS 8033 (D. Kan. April 30, 2002) ...... 29
Illinois Tool Works, Inc. v. Metro Mark Prods., Ltd. 43 F. Supp. 2d 951 (N.D. Ill. 1999) ...... 11, 38
Infant Formula Antitrust Litig. 1991 U.S. Dist. LEXIS 202532, 1991-2 Trade Cas. (CCH) (N.D. Fla. Aug. 16, 1991)...... 37
Jones v. Goord 2002 U.S. Dist. LEXIS 8707 (S.D.N.Y. May 16, 2002)...... 2, 30, 31, 38, 41, 48
Jones v. Syntex Labs., Inc. No. 99C3113, 2001 WL 1338987 (N.D. Ill. 2001) ...... 28
Kronisch v. United States 150 F.3d 112 (2d Cir. 1998)...... 8
Lang v. Hochman 77 Cal. App. 4th 1225, 92 Cal. Rptr. 2d 322 (2000)...... 11
Lawyers Title Ins. Corp. v. United States Fidelity & Guaranty Co. 122 F.R.D. 567 (N.D. Cal. 1988)...... 42
Lexis-Nexis v. Beer 41 F. Supp. 2d 950 (D. Minn. 1999)...... 17
Linnen v. A.H. Robins Co. 10 Mass. L. Rptr. 189 (Super. Ct. 1999) ...... 2, 3, 18, 19, 21, 33, 37, 38
iii TABLE OF AUTHORITIES (continued) Page(s)
Mathias v. Jacobs 197 F.R.D. 29 (S.D.N.Y. July 28, 2000), vacated in part on other grounds, 167 F.Supp.2d 606 (2001) ...... 8, 42
McPeek v. Ashcroft ("McPeek I") 202 F.R.D. 31 (D.D.C. 2001) ...... 23, 24
McPeek v. Ashcroft ("McPeek II") 212 F.R. D. 33 (D.D.C. 2003) ...... 23
Metropolitan Opera Ass’n v. Local 100 Hotel Empl. & Rest. Empl. Int’l Union 2003 U.S. Dist. LEXIS 1077 (S.D.N.Y. Jan. 28, 2003)...... 5, 10, 11, 12, 13
Munshani v. Signal Lake Venture Fund II 2001 Mass. Super. LEXIS 496 (Oct. 9, 2001)...... 16
Murphy Oil USA, Inc. v. Fluor Daniel, Inc. 2002 WL 246439 (E.D. La. Feb. 19, 2002) ...... 34
National Ass’n of Radiation Survivors v. Turnage 1987 U.S. Dist. LEXIS 3468 (N.D. Cal. 1987)...... 10
National Union Elec. Corp. v. Matsushita Elec. Indus. Co. 494 F. Supp. 1257 (E.D. Pa. 1980)...... 1, 27, 29
New York State NOW v. Cuomo, 1998 U.S. Dist. LEXIS 10520 (S.D.N.Y. July 14, 1998), claim dismissed on other grounds sub nom. New York State NOW v. Pataki, 261 F.3d 156 (2d Cir. 2001), cert. denied, 122 S. Ct. 1066 (2002) ...... 9, 10, 49
Northwest Airlines, Inc. v. Local 2000 Int'l Brotherhood of Teamsters Civ. Action No. 00-08 (D. Minn. Feb. 2, 2000) ...... 15, 16, 25, 26, 27, 33
Oppenheimer Fund, Inc. v. Sanders 437 U.S. 340 (1978)...... 28
Paramount Corp., et al. v. Replay TV, Inc. and SONICblue, Inc. No. CV 01-9358-FMC (Ex) (C.D. Cal. May 30, 2002) ...... 27
Pennar Software Corp. v. Fortune 500 Systems, Ltd. 2001 U.S. Dist. LEXIS 18432 (N.D. Cal. Oct. 26, 2001) ...... 18
Pharmatrak, Inc. Privacy Litigation 220 F. Supp. 2d 4 (D. Mass. 2002)...... 49
iv TABLE OF AUTHORITIES (continued) Page(s)
PHE, Inc. v. Dep't of Justice 139 F.R.D. 249 (D.D.C. 1991) ...... 28, 29
Playboy Enters., Inc. v. Welles 60 F. Supp. 2d 1050 (S.D. Cal. 1999), aff’d in part and rev’d in part on other grds, 279 F.3d 796 (9th Cir. 2002)...... 15, 16, 25, 26, 33, 47
Premier Homes and Land Corp. v. Cheswell, Inc. 240 F. Supp. 2d 97 (D. Mass. 2002)...... 48
Procter & Gamble Co. v. Haugen 179 F.R.D. 622 (D. Utah 1998), aff'd & rev'd on other grds, 222 F.3d 1262 (10th Cir. 2000) ...... 36, 37, 43, 45, 46
Prudential Ins. Co. of Am. Sales Practices Litig. 169 F.R.D. 598 (D.N.J. 1997) ...... 11, 12, 37
Public Citizen v. Carlin 184 F.3d 900 (D.C. Cir. 1999), cert. denied, 529 U.S. 1003 (2000)...... 4
R.S. Creative, Inc. v. Creative Cotton, Ltd., 75 Cal. App. 4th 486, 89 Cal. Rptr. 2d 353 (1999) ...... 3, 9, 25, 38
Residential Funding Corp. v. DeGeorge Financial Corp. 2002 U.S. App. LEXIS 20422 (2d Cir. Sept. 26, 2002) ...... 5, 12, 23
RKI, Inc. v. Grimes 177 F. Supp. 2d 859 (N.D. Ill. 2001), mot. for new trial denied, 2002 U.S. Dist. LEXIS 7974 (N.D. Ill. MAY 2, 2002)...... 5
Rowe Entertainment, Inc. v. William Morris Co. 205 F.R.D. 421, 2002-1 Trade Cas. (CCH) P73, 567 (S.D.N.Y. 2002) ...... 32, 35
Sabouri v. Ohio Bureau of Employment Servs. 2000 WL 1620915 (S.D. Ohio Oct. 24, 2000) ...... 39
Sattar v. Motorola, Inc. 138 F.3d 1164 (7th Cir. 1998)...... 30
Severed Enron Employees Coalition v. Northern Trust Co No. H-02-0267 (S.D. Tex. Jan. 28, 2002) ...... 6
Shamis v. Ambassador Factors Corp. 34 F. Supp. 2d 879 (S.D.N.Y. 1999) ...... 8
v TABLE OF AUTHORITIES (continued) Page(s)
Simon Property Group L.P. v. MySimon, Inc. 194 F.R.D. 639 (S.D. Ind. 2000) ...... 15, 16, 25, 26, 27, 33
Smith v. Texaco Inc. 951 F. Supp. 109 (E.D. Tex. 1997), rev'd on other grds, 263 F.3d 594 (5th Cir. 2001)...... 37
Stallings-Daniel v. Northern Trust Co. 2002 U.S. Dist. LEXIS 4024 (N.D. Ill. Mar. 12, 2002)...... 31
Strasser v. Yalamanchi 69 So.2d 1142 (Fla. 4th Dist. Ct. App. 1996), review denied, 805 So. 2d 810 (Fla. 2001) ...... 15, 26, 50
Symantec Corp. v. McAfee Assocs., Inc., 1998 U.S. Dist. LEXIS 22591 (N.D. Cal. Aug. 14, 1998)...... 39
TBG Ins. Servs. Corp. v. Superior Court (Zieminski) 96 Cal. App. 4th 443, 117 Cal. Rptr. 2d 155 (2002)...... 16
Telectron, Inc. v. Overhead Door Corp. 116 F.R.D. 107 (S.D. Fla. 1987) ...... 9, 10, 11
Trigon, Inc. v. United States 204 F.R.D. 277 (E.D. Va. 2001)...... 5
Tulip Computers Int'l B.V. v. Dell Computer Corp. 2002 U.S. Dist. LEXIS 7792 (D. Del. Apr. 30, 2002)...... 43
Turner v. Hudson Transit Lines, Inc. 142 F.R.D. 68 (S.D.N.Y. 1991) ...... 8, 10, 11
United States v. Arthur Andersen, LLP No. CRH-02-121 (S.D. Tex. Mar. 7, 2002)...... 6
United States v. Sungard Data Systems 173 F. Supp. 2d. 24 (D.D.C. 2001) ...... 27
United States v. Wise 221 F.3d 140 (5th Cir. 2000), cert. denied, 532 U.S. 959 (2001) ...... 5
Van Westrienen v. Americontinental Collection Corp. 189 F.R.D. 440 (D. Ore. 1999)...... 39
vi TABLE OF AUTHORITIES (continued) Page(s)
West v. Goodyear Tire & Rubber Co. 167 F.3d 776 (2d Cir. 1999)...... 37
Willard v. Caterpillar, Inc. 40 Cal. App. 4th 892, 48 Cal. Rptr. 2d 607 (1995)...... 8, 9
Winters v. Textron 187 F.R.D. 518 (M.D. Pa. 1999) ...... 8
Wm. T. Thompson Co. v. General Nutrition Corp. 593 F. Supp. 1443 (C.D. Cal. 1984)...... 8, 9, 11
Wright v. AmSouth Bancorp. 2003 WL 245588 (11th Cir. Feb. 5, 2003)...... 24
Zubulake v. UBS Warburg LLC 2003 U.S. Dist. LEXIS 7940 (S.D.N.Y. May 13, 2003)...... 14, 24, 33, 34, 35
CONSTITUTIONS, STATUTES, RULES & REGULATIONS
FEDERAL 18 U.S.C. § 1512(b)(2), (c)...... 6, 7
18 U.S.C. § 1519...... 7
18 U.S.C. § 1520(a)(2)...... 7
18 U.S.C. § 2511(2)(h)(ii) ...... 17
28 U.S. C. § 1927...... 5
44 U.S.C. § 3301...... 4
Fed. R. Civ. P. 16(b)...... 40
Fed. R. Civ. P. 26...... 2, 35, 40
Fed. R. Civ. P. 30(a)(2)(A) ...... 41
Fed. R. Civ. P. 30(b)(6) ...... 41, 42
Fed. R. Civ. P. 30(b)(7) ...... 40
vii TABLE OF AUTHORITIES (continued) Page(s)
Fed. R. Civ. P. 31(d)(2)(A) ...... 41
Fed. R. Civ. P. 34...... 2, 3, 29
Fed. R. Civ. P. 37...... 5, 18, 35
SEC Rule 17a-4, 17 C.F.R. § 240.17a-4...... 3, 35
STATES Cal. Code Civ. Proc. § 2016(b)(3) ...... 3
Cal. Code Civ. Proc. § 2017(c)-(e) ...... 40
Cal. Code Civ. Proc. § 2020...... 3
Cal. Code Civ. Proc. § 2023(a)(4), (6)-(7) ...... 9, 29
Cal. Code Civ. Proc. § 2025(g), (h)(3), (o) ...... 40, 41
Cal. Code Civ. Proc. § 2031(f), (m) ...... 3, 40
Cal. Code Civ. Proc. § 2033(e), (l) ...... 40
Cal. Const. art. 1 § 1 ...... 16
Cal. Evid. Code § 250 ...... 3
Cal. Penal Code § 135 ...... 7, 8, 11
Cal. Rule of Professional Conduct 5-200(A)...... 4
Model Code of Professional Responsibility DR 7-109(A) ...... 4
Model Rule of Professional Conduct 8.4(c)-(d) ...... 4
Vt. R. Civ. P. 30(b)(7)...... 40
ARTICLES, BOOKS, GUIDES AND COMPILATIONS ABA, Litigation Task Force Civil Discovery Standards 29(a)(iii) (Aug. 1999) ...... 15
Applied Discovery, Law Library ...... 1
viii TABLE OF AUTHORITIES (continued) Page(s)
Best, Richard E., Meet and Confer, California Discovery (1999)...... 40
Best, Richard E., Virtual Discovery: Conducting Discovery in a Web Centric Environment (2002) ...... 41
Best, Richard E., Web Sites re Web Centric Discovery (1999) ...... 41
Carns, Ann, Those Bawdy E-Mails Were Good For a Laugh – Until the Ax Fell 2000 WL-WSJ 3016760 (WSJ Feb. 4, 2000)...... 22
CoreFacts, Electronic Discovery ...... 1
Earnshaw, Aliza, Fios Investors See Big Market For Local Firm, The Business Journal Portland (July 20, 2001) ...... 2
Electronic Evidence Discovery, Inc. ("EED"), A Balancing Act: Determining the Proper Level of Electronic Data Preservation, Recent Developments, June 1998 (EEDI) ...... 14, 19
Fenwick & West LLP, Anonymity Online, Privacy Law Resources...... 4
Fenwick , William A. & Brownstone, Robert D., Efiling: What Is It? What are its Implications?, 19 SANTA CLARA COMPUTER & HIGH TECH L.J. 181 (2002) ...... 32, 51
French, Paul, Unlocking E-Evidence: Know How to Discover Computerized Information, L.A. D.J. (Aug. 13, 2002)...... 42
Giacobbe, Corinne L., Allocating Discovery Costs in the Computer Age: Deciding Who Should Bear the Costs of Discovery of Electronically Stored Data, Note, 57 Wash. & Lee L. Rev. 257 (2000)...... 19
Harvard Law School's Berkman Center for Internet & Society, Case Study: Northwest Airlines (Apr. 26, 2000) ...... 15
Harvard Law School's Berkman Center for Internet & Society, Library - Digital Discovery (Oct. 10, 2000) ...... 1
Keena, J. Robert, E-Discovery: Unearthing Documents Byte by Byte (Bench & Bar of Minn. Mar. 2, 2002)...... 22
Lange, Michele C.S., New act has major impact on electronic evidence, (Nat’l L.J. Nov. 4, 2002) ...... 7
Lazar, Richard A., The Guide to Electronic Discovery (2002) ...... 13, 42
ix TABLE OF AUTHORITIES (continued) Page(s)
Lyman, Peter & Varian, Hal R., How Much Information (2000) ...... 1, 51
Marcus, Richard L., Is There a Need for Rule Changes to Address Distinctive Features of Discovery of Electronic Materials? (Sep. 2002) ...... 52
National Center for State Courts (NCSC), Discovery of Electronic Evidence In State Court Civil Litigation (Dec. 2001) ...... 52
New Technology Inc. (NTI), Computer Forensics for Civil Litigation: Recent Articles from the Legal Press...... 1
Nimsger, Kristin M., Same Game, New Rules; E-discovery adds complexity to protecting clients and disadvantaging opponents (Legal Times June 18, 2002)...... 22
Overly, Michael R., Overly on Electronic Evidence in California § 3.05[A] (West Group 1999)...... 3, 9
Petersen, Melody, Big Drug Company Says It May Face Obstruction Case, N.Y. Times (May 31, 2003) ...... 6
Porter, Rebecca, The Next Step: Taking Depositions Online (Trial Aug. 2001)...... 41
Questra, Web Services in Embedded Systems; White Paper (July 2001) ...... 42
Rosenbaum, Hon. James M., In Defense of the Delete Key, May 31, 3 The Green Bag 393 (Summer 2000)...... 14
Rosenzweig, Sandra Rosie's Ramblings (Cal. Lawyer Dec. 2002) ...... 15
Scheindlin, Hon. Shira A. & Rabkin, Jeffrey, Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task? 41 B.C. L. REV. 327 (2000)...... 3
Searles, Donald, Essentials of Electronic Discovery: What Every Practitioner Must Know, (Cal. CEB PowerPoint presentation March 2002) ...... 46
SEDONA PRINCIPLES: Best Practices, Recommendations & Principles for Addressing Electronic Document Production (Mar. 2003) ...... 1
SEDONA PRINCIPLES: Observations on "The Sedona Principles" (Apr. 2003) ...... 1
TechnoFeature: E-Discovery Through FRCP 30(b)(6) Depositions, TechnoLawyerArchive (Nov. 19, 2002)...... 42
x TABLE OF AUTHORITIES (continued) Page(s)
Thomas, Landon, A Ruling Makes E-mail Evidence More Accessible, N.Y. Times (May 17, 2003)...... 34
Tsoutsouris, Damian, Computer Forensic Legal Standards and Equipment, (System Administration, Networking and Security Institute Dec. 6, 2001) ...... 14
Wall, Christopher D. and Lange, Michele C.S., Electronic Discovery: Recent Developments, (Wash. Lawyer Mar. 2003)...... 14
Withers, Kenneth J., Computer-Based Discovery in Federal Civil Litigation 2000 Fed. Cts. L. Rev. 2 (Oct. 2000) ...... 15
Wright, Charels Alan & Miller, Arthur R., 8A Federal Practice and Procedure § 2218 (2d ed. 1994)...... 2
PROVIDERS OF SERVICES & PRODUCTS Applied Discovery ...... 47
Cataphora ...... 47
Depocast.com ...... 41
Guidance Software...... 47
I-DEP...... 41
KrollOntrackTM ...... 47
Logicube...... 14
New Technologies, Inc...... 14, 47
Steelpoint ...... 47
xi
I. INTRODUCTION1 As one federal judge so astutely predicted two decades ago:
It may well be that Judge Charles E. Clark and the framers of the Federal Rules of Civil Procedure could not foresee the computer age. However, we know we now live in an era when much of the data which our society desires to retain is stored in computer discs. This process will escalate in years to come; we suspect that by the year 2000 virtually all data will be stored in some form of computer memory.2
The 1980 prediction was not too far off. In our high-tech era, a body of law3 has evolved regarding the parameters of the preservation, collection, and production of
1 The authors wish to thank Michelle van Wiggeren and Steve Goldberg for their invaluable help in updating and revising the predecessor of this paper, "Professionalism in CyberDiscovery; The Proper Course for Retaining and Producing Electronic Documents," originally written and copyrighted in 1999 by Lisa M. Arent. The authors also wish to thank Rachael Samberg and Leslie Morris for their help in the Spring 2003 updating of this paper. 2 National Union Elec. Corp. v. Matsushita Elec. Indus. Co., 494 F. Supp. 1257, 1262 (E.D. Pa. 1980) (emphasis added). Only .003% of the unique information produced annually by the world is in printed documents. A study, titled “How Much Information” and published in 2000, by the faculty and students at the School of Information Management and Systems at the University of California at Berkeley reported: The world produces between 1 and 2 exabytes of unique information per year, which is roughly 250 megabytes for every man, woman, and child on earth. An exabyte is a billion gigabytes, or 1018 bytes. Printed documents of all kinds comprise only .003% of the total. Magnetic storage is by far the largest medium for storing information and is the most rapidly growing, with shipped hard drive capacity doubling every year. Magnetic storage is rapidly becoming the universal medium for information storage. Peter Lyman & Hal R. Varian, "How Much Information" (2000).
1 electronic evidence.4 This paper discusses the application of discovery rules and common law discovery principles to electronic information issues.
II. PRESERVATION AND COLLECTION OF ELECTRONIC DATA
A. The Duty to Preserve Evidence 1. Preservation Obligations in the Electronic Context
A party has a duty to preserve potentially relevant evidence. Evidence includes all forms of information: not only hardcopy documents,5 but also electronic information stored on a computer, in a database or in any other electronic format. A requesting party is entitled to obtain discoverable information from an electronic source to the same extent as from a filing cabinet.6 In each situation, the responding party must determine the potential sources and locations of responsive information and then conduct a diligent search for responsive materials.
Rule 34 of the Federal Rules of Civil Procedure defines the term "document" broadly, to include information in any tangible format.7 Although discovery of electronic data has become an issue of increased interest and concern over the last several years, the notion that computer data is discoverable is not new. In 1970, Congress modified Rule
4 "The U.S. market for electronic discovery services is 'probably a couple billion dollars' in the near term . . . and in the next three to four years . . . will probably grow to 'several billion dollars,' with the international market adding another 25 to 50 percent," according to the associate director of a $10 billion venture capital firm that invested in a provider of electronic services to law firms. Aliza Earnshaw, "Fios Investors See Big Market For Local Firm," The Business Journal Portland (July 20, 2001).
2
34 to explicate that the term "documents" encompassed more than just hardcopies.8
Neither of the California Discovery Act provisions regarding the production of "documents and tangible things" defines "document."9 Instead, in all Discovery Act sections, by virtue of Cal. Code Civ. Proc. § 2016(b)(3), "document" is coextensive with "writing" as defined in California Evidence Code § 250. Section 250 defines "writing" as "handwriting, typewriting, printing, photostating, photographing, and every other means of recording upon any tangible thing any form of communication or representation, including letters, words, pictures, sounds, or symbols, or combinations thereof." That definition has been interpreted broadly to include information in electronic form. 10
The broad definition of "documents" typically used in requests for production encompasses information stored on computers and on computer media, such as floppy disks, zip drives, jaz drives,11 and archival/emergency storage devices (such as back-up tapes).12 Moreover, electronic versions of documents can contain additional, non- printed/hidden information (known as metadata), such as the dates of creation, access
8 The 1970 Advisory Committee Notes provide that Rule 34 encompasses "electronic data compilations from which information can be obtained only with the use of detection devices." "[W]hen the data can as a practical matter be made usable by the discovering party only through respondent's devices, respondent may be required to use his devices to translate the data into usable form." Id. "[C]ourts have ample power under Rule 26(c) to protect respondent against undue burden or expense, either by restricting discovery or requiring that the discovering party pay costs. [I]f the discovering party needs to check the electronic source itself, the court may protect respondent with respect to preservation of his records, confidentiality of nondiscoverable matters, and costs." Id. See generally Hon. Shira A. Scheindlin & Jeffrey Rabkin, “Electronic Discovery in Federal Civil Litigation: Is Rule 34 Up to the Task?” 41 B.C. L. REV. 327 (2000).
3 and/or modification and, if relevant, sending and receiving details.13 2. Nature and Consequences of Duty to Preserve a. Introduction
The responding party's failure to preserve evidence or destruction of evidence can lead to a variety of adverse consequences. It may preclude the requesting party from obtaining otherwise relevant or discoverable evidence; it may harm the integrity of the court proceedings; and it may ultimately harm the blameworthy party.
b. Ethical Obligations
When conducting discovery, an attorney should keep in mind the principles set forth in ethics rules. Model Rule of Professional Conduct 8.4(c)-(d) proscribes "dishonesty, fraud, deceit, or misrepresentation [or] conduct that is prejudicial to the administration of justice."14 Moreover, as to the production of evidence, Model Rule of Professional Conduct 3.4(a) provides that a lawyer shall not "unlawfully obstruct another party's access to evidence or unlawfully alter, destroy or conceal a document or other material having potential evidentiary value [; and] shall not counsel or assist another person to do any such act."15
c. Sanctions
Depending upon the nature of the conduct, including the degree of culpability, the ramifications in a civil litigation can include: monetary penalties (such as attorney fees, costs and/or pay-for-proof sanctions); exclusion of evidence; adverse inference jury
13 Public Citizen v. Carlin, 184 F.3d 900, 910 (D.C. Cir. 1999) (paper printout of e-mail record not "extra copy" under 44 U.S.C. § 3301 if it does not include transmission data, such as names and addresses of recipient and author and date message sent), cert. denied, 529 U.S. 1003 (2000); Armstrong v. EOP, 1 F.3d 1274, 1283 (D.C. Cir. 1993) (same). One category of potentially discoverable information beyond this paper's scope is: customer identifying information maintained by Internet Service Providers ("ISP's"). See generally Doe v. 2TheMart.com Inc., 140 F. Supp. 2d 1088 (W.D. Wash. 2001) (granting motion to quash subpoena; using First Amendment to reject request to reveal names of 23 individuals who posted, in online chat room, supposedly harmful messages about requesting company), Dendrite Int'l, Inc. v. Doe No. 3, 342 N.J. Super. 134 (N.J. App. Div. 2001) (upholding lower court ruling that corporation/defamation-plaintiff could not obtain identity of message-board-poster); and other anonymity on-line decisions linked off of the "Anonymity Online" segment of Fenwick & West's Privacy Law Resources segment of
4 instructions;16 and, in an appropriately extreme case, a dismissal or default judgment.17
Last year, the Second Circuit analyzed the requisite “culpable state of mind,”18 finding that “discovery sanctions, including an adverse inference instruction, may be imposed where a party has breached a discovery obligation not only through bad faith or gross negligence, but also through ordinary negligence.”19 A few months later, a Southern District of New York judge went even farther than an adverse instruction in Metropolitan Opera Ass’n v. Local 100 Hotel Empl. & Rest. Empl. Int’l Union, 2003 U.S. Dist. LEXIS 1077 (S.D.N.Y. Jan. 28, 2003) (“MetOpera”). There, the misconduct was so extreme20 that Judge Loretta A. Preska granted “Plaintiff’s motion for final “judgment as to liability against defendants and for . . . attorneys’ fees necessitated by the discovery abuse[s] by defendants and their counsel.”21
Drawing on her prior experience as a litigator, Judge Preska found that:
The discovery process in this case . . . transcended the usual clashes between adversaries, sharp elbows, spitballs and even Rambo litigation tactics. This case was qualitatively different. It presented the unfortunate combination of lawyers who completely abdicated their responsibilities under the discovery rules and as officers of the court and clients who lied and, through omission and commission, failed to search for and produce documents and, indeed, destroyed evidence – all to the ultimate prejudice of the truth-seeking process.
MetOpera relied on Fed. R. Civ. P. 37, on 28 U.S. C. § 1927, and on a court’s inherent
16 See Trigon, Inc. v. United States, 204 F.R.D. 277 (E.D. Va. 2001) (in corporate taxpayer's refund action, finding Government's retained litigation consulting-company willfully and intentionally destroyed testifying experts' draft reports and correspondence, such that adverse inferences and other sanctions warranted); RKI, Inc. v. Grimes, 177 F. Supp. 2d 859, 877 (N.D. Ill. 2001) (at bench trial "[D]efendants' spoliation of evidence on their computer support[ed] a negative inference that [D]efendants destroyed evidence of misappropriation" of trade secrets; "highly suspicious" deletions and defragmentation constituted "circumstantial evidence" of misappropriation), mot. for new trial denied, 2002 U.S. Dist. LEXIS 7974 (N.D. Ill. May 2, 2002). Even absent formal sanctions for spoliation of evidence, at trial a party might get some mileage from an opponent's misconduct. See, e.g., United States v. Wise, 221 F.3d 140, 156-57 (5th Cir. 2000) (in spite of denial of requested adverse inference instruction, Defendant still could attack prosecution's failure to seize informant's computer, which then incurred data loss when informant installed new Windows '95 program), cert. denied, 532 U.S. 959 (2001). 17 Metropolitan Opera Ass’n v. Local 100 Hotel Empl. & Rest. Empl. Int’l Union, 2003 U.S. Dist. LEXIS 1077 (S.D.N.Y. Jan. 28, 2003) (“Met”) (granting Plaintiff’s motion for judgment against labor union, union’s President and union’s lead organizer, in action based on allegations that union improperly involved the Met in labor dispute between union and the Met’s food service provider). 18 Residential Funding Corp. v. DeGeorge Financial Corp., 2002 U.S. App. LEXIS 20422, *21-22 (2d Cir. Sep. 26, 2002) (vacating jury verdict and remanding for reconsideration of whether Plaintiff’s failure to timely or fully produce e-mail back-up tapes warranted adverse jury instruction). 19 Id. at *4, 40. 20 See the parade of horribles listed in Section II (A)(5) below. 21 Metropolitan Opera Ass’n v. Local 100 Hotel Empl. & Rest. Empl. Int’l Union, 2003 U.S. Dist. LEXIS 1077, *180 (S.D.N.Y. Jan. 28, 2003) (emphasis added).
5
power to sanction as the justifications for the lawsuit’s ultimate“result [being] driven by discovery abuse” rather than by resolution “on the merits.” 22
d. Potential Criminal Penalties
Under federal law, it is a crime to obstruct justice by "threaten[ing] or corruptly persuad[ing] another person . . . with intent to . . . cause or induce any person to alter, destroy, mutilate, or conceal an object with intent to impair the object's integrity or availability for use in an official proceeding."23 As discussed infra in Section II(A)(2), a party's responsibility to preserve evidence begins when litigation can reasonably be anticipated, rather than at the moment process is served.
A fundamental misunderstanding or misconstruction of that principle has proved devastating for Arthur Andersen LLP in the now infamous Enron case. Andersen, Enron's internal and external auditor, was convicted last year on a federal obstruction/ tampering charge.24 The criminal prosecution and a number of parallel civil lawsuits25 were based on allegations that, while anticipating litigation, Andersen persuaded employees to shred Enron documents. “[I]n general, . . . federal prosecutors have become much tougher with companies that seek to obstruct justice since document destruction became an issue in the investigation of Enron's collapse.”26
In the Enron situation, Andersen correctly anticipated litigation - and government investigations - shortly before the issuance of a press release disclosing that Enron's shareholder equity would be reduced by $1.2 billion.27 A week before issuing the release, Andersen, "which had an internal department of lawyers for routine legal matters, had retained an experienced New York law firm to handle future Enron-related litigation."28 The Andersen indictment charged that these facts demonstrated Andersen was on notice of the obligation to preserve evidence in anticipation of litigation. The indictment alleged that
22 Id. at *3-4. 23 18 U.S.C. § 1512(b)(2) 24 See Indictment in United States v. Arthur Andersen, LLP, No. CRH-02-121 (S.D. Tex. Mar. 7, 2002).
• Abrams v. Enron Corp., et al., No. H-01-3630 (S.D. Tex. Nov. 13, 2001) (Amended Complaint).
6
Andersen then embarked on an enormous spoliation effort.29 In particular, it charged that, after weeks of shredding, "members of the Andersen team on the Enron audit were alerted finally that there could be 'no more shredding' because the firm had been 'officially served' [with a request] for documents."30
As part of the Enron fall-out, Congress included two information-tampering statutes in the vast Sarbanes-Oxley Act of 2002 (“Act”).31 The first one, § 802 of the Act, criminalizes the alteration of records related to federal investigations, bankruptcy proceedings and corporate audits.32 The audit records component of Section 802 specifically references “electronic records.”33 The second one, §1102 of the Act, provides criminal penalties for “tampering with a record or otherwise impeding an official proceeding.”34
Under state law, obstruction based on spoliation can also lead to criminal liability. For example, in California, one commits a misdemeanor if, "knowing that any book, paper, record, instrument in writing, or other matter or thing, is about to be produced in evidence upon any trial, inquiry, or investigation . . . willfully destroys, or conceals the same, with intent thereby to prevent it from being produced."35
3. When the Duty Arises
The duty to preserve evidence arises or expands upon the reasonable anticipation of litigation; receipt of pre-litigation correspondence; or service of the complaint, of the answer, or of discovery requests.
a. Pre-Litigation
Many courts have recognized a duty to preserve evidence that one knows, or reasonably should know, is relevant to pending, imminent, or reasonably foreseeable
29 Indictment, at 5-6 10 (alleging that "an unparalleled initiative was undertaken to shred physical documentation and delete computer files. . . . The shredder at the ANDERSEN office at the Enron building was used virtually constantly. . . . A systematic effort was also undertaken and carried out to purge the computer hard-drives and E-mail system of Enron-related files." 30 Id. at 6 ¶ 12. 31 116 Stat. 745, Pub. L. No. 107-204 (July 30, 2002), available at
7 litigation.36 In analyzing that duty, one California appellate court explained that "the character of . . . document destruction - whether illegal, unfair, immoral or not - is tied to, among other things, its timing."37 That court described a "liability continuum" for destruction of evidence, beginning with the most egregious situation, namely documents about to be introduced into evidence at trial.38 On the least culpable end of that continuum, "there is no liability for failing to preserve documents before a party has notice of their relevance to litigation likely to be commenced."39 Whether a particular destruction situation ends up on that spectrum can depend on various factors, such as length of the pre-litigation period and the number of prior similar claims. 40
b. After Service of Complaint
At a minimum, it is generally accepted that: "[s]ervice of a complaint puts the receiving party on notice that it is required to preserve evidence that may be relevant to the
36 The preservation obligation arises upon "notice that . . . evidence is relevant to litigation - most commonly when suit has already been filed. . . but also on occasion in other circumstances, as for example when a party should have known that the evidence may be relevant to future litigation." Kronisch v. United States, 150 F.3d 112, 126 (2d Cir. 1998) (reversing summary judgment because jury could draw adverse inference from individual defendant's destruction of documents). See also Mathias v. Jacobs, 197 F.R.D. 29, 39 (S.D.N.Y. July 28, 2000) ("Obviously service of a discovery demand places a party on notice to preserve the materials explicitly requested, but the duty to preserve arises whenever a party has been served with a complaint or anticipates litigation." (citations omitted)), also available at
8 claims asserted.”41 That obligation arises before receipt of a production request.42
c. Once Discovery Process has Begun
The responsibility not to lose or destroy pertinent information intensifies once the discovery process is under way. For example, under the California Civil Procedure Code, sanctionable "[m]isuses of the discovery process include, but are not limited to:
• "Failing to respond or to submit to an authorized method of discovery."
• "Making an evasive response to discovery."
• "Disobeying a court order to provide discovery."43
4. What Must be Preserved
Once a complaint is filed, a litigant is obligated "to preserve what it knows, or reasonably should know, is relevant in the action, is reasonably calculated to lead to the discovery of admissible evidence, is reasonably likely to be requested during discovery, and/or is the subject of a pending discovery request."44 Generally speaking, a party should preserve those categories of evidence that it reasonably anticipates may later become
41 New York State NOW v. Cuomo, 1998 U.S. Dist. LEXIS 10520, *5 (S.D.N.Y. July 14, 1998), claim dismissed on other grounds sub nom. New York State NOW v. Pataki, 261 F.3d 156 (2d Cir. 2001), cert. denied, 122 S. Ct. 1066 (2002). A party to a litigation has "a duty not to lose or destroy evidence relevant to the lawsuit." Coca-Cola Bottling Co. v. Superior Court, 233 Cal. App. 3d 1273, 1293 n.10, 286 Cal. Rptr. 855 (1991). See also Michael R. Overly, “Overly on Electronic Evidence in California” § 6.02 (West Group 1999) (citing Coca-Cola Bottling as authority for the existence of the duty to preserve evidence in litigation). 42 New York State NOW, at *5 ("immaterial that the first document requests were not served until after the records were apparently destroyed; Cedars-Sinai, 18 Cal. 4th at 12 (destruction of evidence in anticipation of discovery request would be misuse of discovery). 43 C.C.P. § 2023(a)(4), (6)-(7). See also Cedars-Sinai Medical Ctr. v. Superior Court, 18 Cal. 4th 1, 12, 74 Cal. Rptr. 2d 248 (1998) ("[d]estroying evidence in response to a discovery request . . . would surely be a misuse of discovery within the meaning of section 2023, as would such destruction in anticipation of a discovery request"); R.S. Creative, Inc. v. Creative Cotton, Ltd., 75 Cal. App. 4th 486, 89 Cal. Rptr. 2d 353 (1999) (dismissing complaint and imposing monetary sanctions under § 2023 for Plaintiffs' destruction of computer files during discovery). Based on the availability of such sanctions under § 2023, the Supreme Court of California has declined to recognize a tort cause of action for intentional spoliation of evidence by a party. Cedars-Sinai Medical Ctr. v. Superior Court, 18 Cal. 4th 1, 11, 74 Cal. Rptr. 2d 248 (1998). 44 Wm. T. Thompson Co. v. General Nutrition Corp., 593 F. Supp. 1443, 1455 (C.D. Cal. 1984). See also Danis v. USN Communics., Inc., 2000 WL 1694325, *32 (N.D. Ill. Oct. 23, 2000) (quoting Thompson), also available at
9
relevant.45 For example, if the Defendant's business division and that division's product were mentioned repeatedly and prominently throughout the Plaintiff's complaint and requests for production, Defendant is obliged to preserve that division's sales correspondence and the like.46
Once the discovery process has begun, the preservation duty may prohibit not only file destruction, but also the ongoing use of electronic files. Earlier this year, a California appellate court affirmed the issuance of a temporary injunction to prevent defendants’ ongoing use of certain electronic files they had taken from their former employer when they left to open their own company.47 Only by “freez[ing]” defendants’ electronically stored information in its then-current form could the court preclude the innocent or intentional alteration or destruction of evidence.48 Because discovery sanctions can only punish abuse after it occurs, sanctions alone would have been an insufficient remedy at law.49 In that preservation of the “status quo” was essential to protect Plaintiff’s “right to the discovery,”50 an injunction issued to prevent prospective file destruction.51
5. Attorney’s and Client’s Notification Obligations
Attorneys "have a duty to advise their clients of pending litigation and of the requirement to preserve potentially relevant evidence."52 Because attorneys also have a duty to “establish a coherent and effective system to faithfully and effectively respond to discovery requests,” they must also explain to their clients what types of information may constitute such potentially relevant evidence may encompass.53 The most thorough communication would also inform a client of the range of potential negative consequences
45 Applied Telematics, Inc. v. Sprint Communics. Co., 1996 U.S. Dist. Lexis 14053, *6 (E.D. Pa. Sept. 17, 1996). 46 Telectron, Inc. v. Overhead Door Corp., 116 F.R.D. 107, 109-10 (S.D. Fla. 1987). 47 Dodge, Warren & Peters Ins. Servs., Inc. v. Riley, 105 Cal. App. 4th 1414, 130 Cal. Rptr. 2d 385 (4 Dist. 2003). 48 Id. at 1418. 49 Id. at 1419-20. 50 The court pointed out that, for preliminary injunction purposes in this context, the likelihood of success on the merits “concern[ed] whether there [was electronic] evidence” that Plaintiff will be able to discover – not the ultimate merits of Plaintiff’s trade secrets and unfair business practices causes of action. Id. at 1418-20. 51 Id. at 1419-20. 52 New York State NOW v. Cuomo, 1998 U.S. Dist. LEXIS 10520, *5 (S.D.N.Y. July 14, 1998) (while failure to instruct defendant to retain documents in period between service of complaint and receipt of document requests potentially exposes counsel to sanctions, declining to impose sanctions where document destruction was neither in bad faith nor prejudicial to Plaintiff) (citing Turner v. Hudson Transit Lines, Inc., 142 F.R.D. 68, 73 (S.D.N.Y. 1991)(counsel has a "duty to advise his client of the type of information potentially relevant to the lawsuit and of the necessity of preventing its destruction"). 53 Met, 2003 U.S. Dist. LEXIS 1077 at *141, 153 (quoting National Ass’n of Radiation Survivors v. Turnage, 1987 U.S. Dist. LEXIS 3468, *556 (N.D. Cal. 1987)).
10 of destruction or deletion, including contempt of court, civil and criminal54 penalties, default judgment,55 or dismissal.56
In turn, corporate representatives are obliged to adequately identify the underlying subject matter and to provide guidance to employees as to the scope of retention.57 A preservation order implicates a heightened obligation.58 Notice of a preservation obligation should be disseminated in a manner most likely to reach the employees - for example, in hardcopy form as well as by e-mail.59 In the event a relevant dispute ensues, it would be helpful to have proof of such notices, as well as a record of when and how they were communicated.
A court may impose severe sanctions, including entry of a default, for a party's failure to ensure that a preservation order is implemented and followed.60 Some cautionary tales emanate from four federal district court decisions.
In one case, the Central District of California struck Defendant corporation's answer based on flagrant lack of compliance with a prior court order requiring the preservation of all purchase, sale, and inventory records maintained in the ordinary course of business.61
54 See, e.g., California Penal Code § 135 (possibility of misdemeanor conviction for destruction of relevant evidence). 55 Telectron, 116 F.R.D. at 109-10 (imposing default judgment based on Defendant's corporate counsel's egregious conduct on day Complaint filed, namely instructing all employees to immediately destroy all sales correspondence over two years old generated by pertinent division of Defendant company). 56 Met, 2003 U.S. Dist. LEXIS 1077 (S.D.N.Y. Jan. 28, 2003). 57 Turner, 142 F.R.D. at 73 ("obligation to retain discoverable materials is an affirmative one; it requires that the agency or corporate officers having notice of discovery obligations communicate those obligations to employees in possession of discoverable materials"). 58 One federal district court imposed a monetary sanction of $1 million for a corporation's failure to adequately inform employees about the existence of a class action, a preservation order and the obligation to preserve evidence. In re Prudential Ins. Co. of Am. Sales Practices Litig., 169 F.R.D. 598, 600, 617 (D.N.J. 1997) (lawsuit relating to practices in sale of life insurance). In Prudential, senior management had not directed the dissemination of a preservation order to employees. 169 F.R.D. at 617. In addition, the e-mails sent by management did not mention the pending class action or the court's order; nor did those e-mails describe the potential penalties for contempt of court for destruction of evidence. Id. at 612. 59 In Prudential, although various pertinent e-mail messages were sent, many employees did not, or could not, read e-mail and thus did not receive the communications. 169 F.R.D. at 613. Therefore, the use of e- mail communications was ineffective and failed to implement the court's preservation order. Id. 60 See, e.g., Illinois Tool Works, Inc. v. Metro Mark Prods., Ltd., 43 F. Supp. 2d 951 (N.D. Ill. 1999) (while noting that facts could have supported contempt finding, awarding reasonable attorney fees, expert fees and costs due to lack of compliance with order to preserve integrity of computers); Wm. T. Thompson Co., 593 F. Supp. at 1456 (striking GNC's answer and dismissing GNC's complaint in another action). Cf. Metropolitan Opera Ass’n v. Local 100 Hotel Empl. & Rest. Empl. Int’l Union, 2003 U.S. Dist. LEXIS 1077 (S.D.N.Y. Jan. 28, 2003) (“Met”) (granting Plaintiff’s motion for judgment).; Lang v. Hochman, 77 Cal. App. 4th 1225, 92 Cal. Rptr. 2d 322 (2000) (affirming imposition of "terminating sanctions" and entry of $22 million default judgment against Defendants after they failed to comply with three discovery orders requiring production of electronic files and other documents). 61 Thompson, 593 F. Supp. at 1447.
11
Neither Defendant's management nor its counsel had instructed employees to preserve such records. Indeed, the president issued a memorandum to all personnel advising that the court order did not require any change in the company's standard document retention/destruction policies or practices. The court found that the course of conduct before and after the preservation order had condoned practices that precipitated the bad faith destruction of critical evidence.62
In a New Jersey federal class action, after Defendant corporation's feeble notification, four of Defendant's field offices destroyed unauthorized sales materials as part of routine document destruction.63 The court chastised management for failing to take an active role in formulating, implementing, or communicating a document retention policy.64 Defendant's "haphazard and uncoordinated approach to document retention indisputably denied the party opponent potential evidence to establish facts in dispute."65 Thus, the court drew the inference that the destroyed materials were relevant and, if available, would have led to successful proof of the claim.66
In the recent Met labor dispute case, Defendants and their counsel exhibited a complete lack of good faith regarding the discovery process.67 Among the litany of bad acts warranting the supreme sanction of entry of judgment were:
-- in response to [Plaintiff] Met counsel’s continuing assertions of lack of an adequate document search and demonstrations of non-production, [Defendant] Union’s counsel repeatedly represented to the Court that all . . . responsive document[s] . . . had been produced when . . . a thorough search had never been made and counsel had no basis for so representing;
-- counsel knew the Union’s files were in disarray and that it had no document retention policy but failed to cause a retention policy to be adopted to prevent destruction of responsive documents, both paper and electronic;
62 Id. at 1447-48. Both before and after the entry of the preservation order, there had been a lack of preservation and a "failure to implement procedures to monitor or control document destruction." Id. at 1454. In addition, after the entry of the order, Defendant had: only preserved relatively useless bulk cash register tapes and store order strips; and erased computer tapes and disks that could have easily retained some of the stored information. Id. 63 In re Prudential Ins. Co. of Am. Sales Practices Litig., 169 F.R.D. 598, 615 (D.N.J. 1997). 64 Upon entry of the document preservation order, "it became the obligation of senior management to initiate a comprehensive document preservation plan and to distribute it to all employees." Prudential, 169 F.R.D. at 615. 65 Id. 66 Id. 67 “The Union and its counsel . . . failed to comply with their discovery obligations from the very outset of this action.” Met, 2003 U.S. Dist. LEXIS 1077, * 164. For example, in lying to the court about a court-ordered deposition witness’ vacation schedule, “counsel’s conduct was not ‘merely discourteous’ but rather a breach of their responsibility to opposing counsel and the Court, inter alia, to engage in discovery in good faith, comply with court orders and, more fundamentally, to tell the truth.” Id. at 164 (citing Residential Funding, 306 F.3d at 112).
12
-- counsel failed to explain to the non-lawyer in charge of document production . . . that a document included a draft or other non-identical copy and included documents in electronic form;
-- the non-lawyer the Union put in charge of document production failed to speak to all . . . who might have relevant documents, never followed up with the people [to whom] he did speak . . . and failed to contact all of the Union’s internet service providers (“ISPs”) to attempt to retrieve deleted e-mails as counsel represented to the Court that [the non-lawyer] would;
-- no lawyer ever doubled back to inquire of the Union employee in charge of document production whether he conducted a search and what steps he took to assure complete production; [and]
-- in the face of Met counsel’s constant assertions that no adequate document search had been conducted and responsive documents had not been produced, Union counsel failed to inquire of several important witnesses about documents until the night before their depositions.68
The lengthy Met decision is a veritable guidebook on the notification aspect of the preservation, collection and production obligations.
Separate and apart from litigation ramifications for the corporation, corporate officers can be held personally responsible for the failure to preserve relevant evidence. For example, in one case the court imposed a $10,000 fine on the Chief Executive Officer (CEO) for breach of the duty to preserve.69 In that situation, the CEO had delegated to the company's "inexperienced" general counsel the entire responsibility for implementing a document preservation plan.70 In turn, the general counsel had neglected to develop specific retention criteria, to inform all employees in writing of the preservation duty, or to give written notice to employees of spoliation's impropriety and ramifications.
B. Scope of Preservation Duty - "Deleted" Files and Back-up Tapes
At the start of some cases, plaintiff serves a letter requesting that its opponent preserve all electronic information, including deleted files and file fragments, and cease modifying or deleting electronic information relating to pertinent topics.71 At that early juncture, plaintiff “demand[s] preservation of 'all' electronic data, including every single
68 Id. at *4-6. 69 Danis v. USN Communics., Inc., 2000 U.S. Dist. LEXIS 16900 (N.D. Ill. Oct. 23, 2000), also available at
13 daily backup tape and file on a company system."72
1. "Deleted" Files a. Introduction
"Deleted" does not necessarily mean gone forever.73 Computer files that are deleted by the user are designated for deletion but remain on the system until they are overwritten randomly as the system needs the space. So, at any given time, a computer's hard drive may have "deleted" data that can be recovered. A sector-for-sector or copy of the hard drive will pick up any deleted files or file fragments that remain.74 In contrast, a file-for-file copy of a hard drive does not pick up deleted files or file fragments, and some imaging programs overwrite some of the deleted files.75 Given the ephemeral nature of electronic information, courts have been standing firm in enforcing the duty to preserve.76
b. Court-Ordered Hard Drive Searches
Does the obligation to search for and produce responsive computer data require a
72 Electronic Evidence Discovery, Inc., "A Balancing Act: Determining the Proper Level of Electronic Data Preservation," Recent Developments, June 1998 (EEDI). See also Hon. James M. Rosenbaum, "In Defense of the Delete Key," 3 The Green Bag 393, 393 (Summer 2000) (observing that the "once-arcane fact [that nothing is truly deleted via the Delete key] has spawned a new legal industry: the mining of e-mails, computer files, and especially copies of hard drives to obtain deleted material"), available at
14 search for "deleted" files?77 Case law does not advise whether a diligent search for responsive information requires a search for deleted files. Yet, there have been cases in which a party successfully sought access to his opponent's computer to search for deleted files. If there is concrete evidence of destruction of electronic information, along with a basis for believing that such information may be discovered through a "deleted" file search of a hard drive, a court may grant such a request. However, the requesting party must: 1) establish that the burden and intrusion are justified by the need; and 2) show a reasonable basis for concluding that the search will turn up otherwise unavailable, responsive information.78
From 1999 to 2000, at least three federal court decisions granted requests for access to their opponents' computers.79 It is not entirely clear whether there was concrete
77 Parties' obligation to preserve electronic information does not necessarily extend to files deleted in the regular course of business. ABA Litigation Task Force Civil Discovery Standards 29(a)(iii) (Aug. 1999) (unless requesting party can demonstrate substantial need, ordinarily no duty "to try to restore electronic information . . . deleted or discarded in the regular course . . .but [maybe not] completely erased").
15 evidence of data destruction in two of those cases.80 In contrast, the third case81 did involve actual data destruction. In any event, taken together, these three cases ostensibly ushered in a judicial tendency82 to appoint a neutral expert to copy hard drives and to attempt to recover deleted data.
When a neutral computer forensics expert successfully flushes out a party's illicit tampering with e-mails, appropriate sanctions may very well follow.83 In one such case, the neutral expert confirmed that Plaintiff had submitted an altered e-mail in opposition to a motion.84 The court dismissed the complaint, ordering Plaintiff to reimburse Defendants for their portion of the expert's fee, and for attorney fees and costs reasonably connected to discovering the fraud perpetrated on the court. The court ruled that "[t]he ability to discover fraud . . . particularly sophisticated computer fraud, is greatly limited. Thus, the imposition of strong sanctions is one of the very few ways of deterring such activity in the future. This Court intends such a message here."85
In a subsequent decision not totally on point, a California court of appeal ruled that an employer could inspect the hard drive of a work-at-home computer it had provided to an employee.86 The claims arose from an allegedly wrongful termination based on the employee's alleged intentional and repeated accessing of sexually explicit websites. The employee had consented in writing to the employer's policy of monitoring electronic communications conducted on office personal computers (PC's) as well as work-at-home PC's. Finding that, under Cal. Const. art. 1 § 1, "the employee had no reasonable expectation of privacy when he used the home computer for personal matters, the
80 Simon Property Group L.P. v. MySimon, Inc., 194 F.R.D. 639 (S.D. Ind. 2000), also available at
16 appellate court directed the trial court to order the requested discovery."87
c. Sanctions for Heinous Deletions
Courts have looked with particular disfavor at parties whose spoliation consists of a deletion of files in defiance of a discovery order. In a trade secret misappropriation case, the court imposed sanctions on a former employee for such a transgression. The former employee had retained copies of a sensitive database and confidential e-mails containing customer information, and had taken them with him to his new job.88 During discovery the court ordered him to turn over a copy of the database to his former employer, Lexis-Nexis, and not to retain any copies. Yet, he attempted to reconstruct the database on his new work laptop.89 When the laptop was finally produced for inspection, Lexis-Nexis's forensic expert determined that the employee had deleted a number of important Lexis-Nexis documents that he had not earlier acknowledged possessing. The expert also found hundreds of additional Lexis-Nexis e-mails with sensitive company documents as attachments. The employee had not earlier acknowledged possessing those e-mails. Lexis-Nexis sought sanctions for spoliation. The court granted monetary sanctions against the employee for his discovery abuses and his clear violation of both parts of the discovery order. 90
Even in the absence of a preservation order, a court may impose sanctions for deceitful conduct intended to destroy evidence relevant to a pending motion. In late 2001,
87 Id. at 445, 452-53. Though a potential federal e-mail monitoring claim by an employee is beyond the scope of this paper, note that the Electronic Communications Privacy Act ("ECPA"), 18 U.S.C. § 2511(2)(h)(ii) allows "a provider of electronic communication service to record the fact that a wire or electronic communication was initiated or completed in order to protect such provider . . . from fraudulent, unlawful or abusive use of such service." 88 Lexis-Nexis v. Beer, 41 F. Supp. 2d 950 (D. Minn. 1999), also available at
17
the Northern District of California sanctioned a defendant for its egregious removal of website information in an attempt to avoid California personal jurisdiction.91 In opposing a jurisdictional motion to dismiss, Plaintiff alleged that Defendant company had maintained a California office. Plaintiff submitted a printout of a page from Defendant's website that had displayed that office's contact information. The web page subsequently "disappeared" shortly after the filing of the motion. Defendant initially denied that the web page "ever existed on its web site or on any location authorized by Defendant."92 Then, "[i]n a sudden resurgence of memory," Defendant recalled deleting the page "as part of 'routine maintenance,' but provided no details whatsoever about this alleged practice."93 When faced with this obvious duplicity, the court sanctioned Defendant under Federal Rule 37(b)(2) as well as under its inherent judicial powers; the award included a monetary penalty, reasonable attorney fees, and costs.94 Because Defendant eventually stipulated to jurisdiction, an order establishing personal jurisdiction pursuant to Rule 37(b)(2), while justified, was not necessary.95
2. Deleted Back-up Tapes a. Background on Back-up Tapes
It is commonplace for companies to make daily or weekly computer system data back-ups, to have on hand in case of a catastrophic system crash. Typically, those back-up tapes are retained for a week, a month, or a similar period of time, and then are put back into rotation and recycled.96 Each back-up takes a snapshot of the information on the computer system at the time of the back-up. When subsequent back-up tapes are made a day, a week, or a month later, previously created back-up tapes may be recycled or deleted from the back-up storage facility. Information on back-up tapes, once they are "restored," can be searched, extracted, or manipulated.
Although the cost of back-up tapes themselves is relatively small, the cost of restoring, reviewing, and extracting responsive information from back-up tapes can run into
91 Pennar Software Corp. v. Fortune 500 Systems, Ltd., 2001 U.S. Dist. LEXIS 18432, *5 (N.D. Cal. Oct. 26, 2001). 92 Id. at *5. 93 Id. at *6. 94 Id. at *14. 95 Id. Cf. Giardina v. Lockheed Martin Corp., 2003 WL 1338826 (E.D. La. Mar. 14, 2003) (in Title VII employment discrimination action, affirming magistrate’s award of attorney fees under Fed. R. Civ. P. 37(a)(4)(A), due to Defendant’s inadequate response to interrogatory seeking list of non-work-related websites visited by 16 computers in six-month period). 96 See, e.g., Linnen v. A. H. Robins Co., 10 Mass. L. Rptr. 189, 1999 Mass. Super. LEXIS 240 (June 16, 1999) (back-up tapes recycled every three months), also available at
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tens of thousands of dollars.97 Successive daily or weekly back-up tapes share much of the same data, the only difference being modifications or deletions. Thus, responding to a "blanket preservation order" by maintaining back-up tapes throughout the life of a lawsuit "would probably result in the accumulation of excessive duplicative and irrelevant data."98
A party has an obligation to preserve, search, and produce responsive information contained on computer media and in its computer system. Just how far must a party go to comply with this obligation? Must it cease the recycling of back-up tapes and set them aside indefinitely for possible use in the lawsuit? A back-up is by definition a copy of data already on the computer system. Thus, theoretically, at any given point in time, a party may fulfill its discovery obligations by: taking steps to preserve all pertinent data on its system; and searching for and collecting all potentially responsive information residing in that system at the given juncture. As long as the scope of discoverable information is delimited by a specific end date, coinciding with the date on which the preservation effort is made, then additional back-up tapes from later dates would not be important.99 The ultimate answer, though, will depend upon a variety of factors, including:
• the judge;
• the underlying facts;
• the desires of the parties (e.g., has one party specifically requested back-up tapes?);
• the sufficiency of the responding party's efforts to search and preserve data on its computer system; and
• the scope of discoverable information - i.e., whether discoverable information is regularly being produced in the party's day-to-day business or whether the pertinent time period is relatively fixed in the past.
b. Failure to Cease Ordinary Recycling
Some courts have enforced preservation obligations regarding back-up tapes. For example, in one case, Linnen v. A. H. Robins Co.,100 Plaintiff succeeded on a sanctions motion, based on a theory that Defendant's failure to preserve back-up tapes during the
97 Corinne L. Giacobbe, Note, “Allocating Discovery Costs in the Computer Age: Deciding Who Should Bear the Costs of Discovery of Electronically Stored Data,” 57 Wash. & Lee L. Rev. 257, 262 (2000) (hereafter "Giacobbe") (discovery of electronically-stored data can be extremely costly relative to hard copies, because companies tend to retain greater quantities of it and because it tends to linger in storage systems longer); Electronic Evidence Discovery, Inc., “A Balancing Act: Determining the Proper Level of Electronic Data Preservation” (Recent Developments, June 1998) (hereafter "EEDI"). 98 Giacobbe, 57 Wash. & Lee L. Rev. at 262. 99 As a practical matter, this theoretical scenario will rarely, if ever, play out in this way because it would require the preserver to be sufficiently clairvoyant to identify an exact and accurate end date. 100 10 Mass. L. Rptr. 189, 1999 Mass. Super. LEXIS 240 (June 16, 1999), also available at
19 first four months of the lawsuit was tantamount to evidence destruction.101 Plaintiff argued that pertinent e-mails and other information might have been deleted and therefore would only be available on back-up tapes. According to Plaintiff, the challenged four-month period was critical to the underlying product liability claim, in that it had immediately preceded Defendant's decision to remove from the market the relevant pharmaceutical product.
In light of an ex parte preservation order (albeit temporary) and the service of production requests, Defendant was obliged to preserve the back-up tapes.102 Because Defendant did not fulfill that obligation, the court granted spoliation sanctions, including a jury instruction permitting the inference that Defendant had destroyed potentially relevant evidence out of a realization that the evidence was unfavorable.103
Similarly, another court imposed spoliation sanctions for a party's failure to preserve back-up tapes that were the only source of relevant information.104 Defendant had not willfully destroyed salient telephone routing plans to prevent discovery of them. Rather, its computer system back-up files had been automatically deleted on a weekly basis, as part of normal operating procedures.105 Once served with a document request, Defendant
101 Linnen, 1999 Mass. Super. LEXIS 240, at *9 (upon receiving a preservation order or request for production encompasses computer media, Defendant must cease the recycling of back-up tapes and preserve those tapes for production. Linnen was a wrongful death action involving the weight-loss drug combination known as "fen/phen." The day the complaint was filed, Plaintiff obtained an ex parte preservation order. The court vacated the order a couple weeks later, but there theoretically remained "an understanding between the parties that the [items] would not be destroyed." Still another two weeks later, Plaintiff served document requests on one of the Defendants, a pharmaceutical company. Those requests broadly defined "documents" to include information stored in any computer medium. Yet Defendant continued to recycle its system back-up tapes under a three-month rotation schedule. It was not until three months after service of the discovery requests that Defendant ceased recycling the tapes and began setting them aside. 102 In particular, the court ruled that: During the period of time when the ex parte order requiring [D]efendant to preserve all documents relating to this action was in effect, the customary recycling of back-up tapes for the electronic mail system should have been suspended. . . . The recycling, and resultant destruction, of those back-up tapes was in clear violation of the court's order. . . . [T]he request for production of documents defined the term "document" in a broad fashion, seeking "any record or compilation of information of any kind or description, however made . . . . or stored." Also requested were any documents in the form of computer memory or computer disk. . . . The language of the document request ma[de] it clear that [P]laintiffs sought the production of items such as the system back-up tapes and, after receiving this request, [D]efendant had an obligation to preserve any such documents or materials. Id. at 29-30 (emphasis added). 103 Id. at *37. 104 Applied Telematics, Inc. v. Sprint Communics. Co., 1996 U.S. Dist. Lexis 14053, *10-11, *14 (E.D. Pa. Sep. 17, 1996) (granting Plaintiff's motion for adverse inference of spoliation and for spoliation sanctions; also awarding reasonable attorney fees and costs). 105 Id. at *11.
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should have been aware that the routing plans were the subject of discovery. Thus, it was "at fault for not taking steps to prevent . . . routine deletion of . . . backup files."106 The court rejected Defendant's putative excuse that Plaintiff had been previously informed of the routine deletion of back-up files but had not asked Defendant to save them.107 Defendant had an independent, "affirmative" preservation duty. 108
c. Restoring & Searching Back-up Tapes
While potentially costly, assuming an obligation to restore many back-up tapes in response to a discovery request "is one of the risks taken on by companies which have made the decision to avail themselves of the computer technology now available to the business world."109 Courts are now unlikely to be swayed by a high tech company that balks at the prospect of back-up restoration. For example, in a product liability class action, Linnen v. A. H. Robins Co.,110 the court did not look kindly on the lead Defendant’s stonewalling. Robins had produced only a small number of e-mail messages, in hardcopy form, as of one year into the litigation. Plaintiff then requested the production of all e-mails, to or from 15 people, referencing three significant topics. After months of obfuscation and sporadic production, Defendant finally disclosed that it might have located thousands of old back-up tapes. It had apparently taken those tapes out of the recycling process in connection with another case, Case No. MDL 1203, which was a consolidated multi-district litigation action in which A. H. Robins Co. was also a party.
Plaintiffs narrowed the categories of responsive tapes by limiting the request to a shorter time frame, to a smaller number of persons, and to a narrower issue. However, Plaintiffs also broadened the request by seeking the restoration of all relevant back-up tapes, not just a sampling. The court agreed that the tapes "ha[d] the potential for containing relevant material and that Plaintiffs should have the opportunity to examine at least a portion . . . to determine if that is the case."111
Defendant argued that restoring and searching back-up tapes would be an unduly burdensome "multi-million dollar fishing expedition."112 The court disagreed, noting that
106 Id. 107 Id. 108 Id. 109 Linnen, 1999 Mass. Super. LEXIS 240, at *18 ("[t]o permit a corporation such as [Defendant A.H. Robins, a large pharmaceutical company,] to reap the business benefits of such technology and simultaneously use that technology as a shield in litigation would lead to incongruous and unfair results"),
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Plaintiffs had tailored the request to seek specific responsive e-mails.113 The court declined to order the restoration and search of all the requested back-up tapes. It held that the parties should await the MDL 1203 restoration and sampling search results, which Defendant would produce to Plaintiffs. Then, Plaintiffs could revisit their request for production.114
113 The court rejected Defendant's argument that the number of previously produced documents (including e- mails) somehow affected Plaintiff's right to additional discovery. Id. at *17 n.6. See also Cobell v. Norton, 2002 U.S. Dist. LEXIS 5291, at *4-5 (D.D.C. Mar. 29, 2002) (in light of court's prior rejection of same arguments, sanctioning Defendant Department of Interior for seeking a " 'protective order clarifying that it may produce e-mail in response to discovery requests by producing from [sic] paper records of e-mail messages rather than from backup tapes and may overwrite backup tapes in accordance with Departmental directives.' " Cf. Cobell v. Norton, 2002 U.S. Dist. LEXIS 5292 (D.D.C. Mar. 29, 2002). The Government’s many discovery abuses in Cobell ultimately contributed to the court’s issuance of multiple civil contempt orders. See Cobell v. Norton, 2002 U.S. Dist. LEXIS 17353 (D.D.C. Sep. 17, 2002) (267 page opinion finding Interior Department’s Secretary as well as its Assistant Secretary of Interior for Indian Affairs in civil contempt for failing to comply with prior order to initiate historical accounting project on Individual Indian Money trust funds). 114 In one of the fen-phen litigations, a Plaintiff's computer forensics experts uncovered a "smoking gun" e- mail message, which was ultimately leaked to the press. Depending on which article one reads, the message is attributed to a different individual – e.g., an accountant at A.H. Robins' successor American Home Products (AHP) or an administrator at AHP's subsidiary Wyeth-Aherst Laboratories. The message is universally claimed to have read: "Do I have to look forward to my waning years writing checks to fat people with a silly lung problem?" Kristin M. Nimsger, "Same Game, New Rules; E-discovery adds complexity to protecting clients and disadvantaging opponents" (Legal Times June 18, 2002), available at
Cf. Ann Carns, "Those Bawdy E-Mails Were Good For a Laugh – Until the Ax Fell," 2000 WL-WSJ 3016760 (WSJ Feb. 4, 2000),
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In a more recent decision, McPeek v. Ashcroft115, the District of Columbia federal district court noted that "[t]here is certainly no controlling authority for the proposition that restoring all backup tapes is necessary in every case." Mindful of the costs involved and the lack of precedent, the court "decided to take small steps and perform, as it were, a test run" to determine if the costs associated with a backup search were justified by relevant results.116
In McPeek, Plaintiff had sought to force the Department of Justice (DOJ) to search for backup copies of deleted files that might relate to retaliation that Plaintiff claimed to have suffered because he complained about sexual harassment. The court recognized the high cost that the DOJ would incur to produce backups.117 Part of the cost at hand stemmed from the indiscriminate way back-up tapes collect information and the nature of the DOJ computer system – designed "not for the purpose of creating a [copy] of each user's hard drive [but] to prevent disaster."118 As a result, the court only ordered the DOJ to perform a backup restoration and search of the e-mails to and from Plaintiff's supervisor for a one-year period.119
Even more recently, a Second Circuit jury verdict reversal reinforced the judicial trend to scrutinize companies’ contentions that they cannot recover data stored on back-up tapes. In Residential Funding Corp. v. DeGeorge Financial Corp.,120 the appellate court found that the trial court had not adequately dissected Plaintiff’s months of protestations concerning purported technical difficulties in recovering e-mails from the critical time period at issue. Those contentions, which had continued past the start of trial, were rendered quite suspicious by Defendant’s consultant’s ability, to recover 950,000 e-mails from the
115 McPeek v. Ashcroft, 202 F.R.D. 31, 34 (D.D.C. 2001). (“McPeek I”). Almost a year and a half later, once the search was complete, the parties returned to court. See McPeek v. Ashcroft, 212 F.R. D. 33, 34 (D.D.C. 2003). The parties vehemently disagreed as to their characterizations of the search results. Plaintiff contended that the search had “produced useful, relevant information that justif[ied] a second [easy, inexpensive] search of backup tapes for certain periods. . . . . Defendant . . . insist[ed] that the first search only produced [cumulative] documents . . . and a second search would be expensive and time consuming.” After “assess[ing] . . . the likelihood that [the back-up tapes would contain . . . word processing documents and e-mails . . .that w[ould] produce information that is relevant to the lawsuit,” the judge denied the request for additional searches as to three of the four individuals at issue. McPeek II, 212 F.R.D. at 34. But compare Amsted Indus. “ERISA” Litig., 2202 WL 31844956, *2 (N.D. Ill. Dec. 18, 2002) (in breach of fiduciary duty action as to Employee Stock Option Plan, ordering additional, broader searches of previously searched e- mail back-up tapes). 116 McPeek I, 202 F.R.D. at 34. 117 Id. at 32 ("merely restoring the e-mail from a single backup tape would take eight hours at a cost of no less than $93 per hour"). 118 Id. at 33 (“[b]ackup tapes are by their nature indiscriminate[; t]hey capture all information at a given time and from a given server but do not catalogue it by subject matter”). 119 Id. at 34-35 (choosing that timeframe "because a letter from [P]laintiff's counsel to DOJ, complaining of retaliation and threatening to file an administrative claim," was dated one day before the start of the year to be restored; and the court was "hoping that the restoration w[ould] yield both the e-mails [Plaintiff's supervisor] sent and those he received"). 120 2002 U.S. App. LEXIS 20422, *13.
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pertinent time period in four days.121
On the other end of the spectrum, a party that will not narrow an overly broad request should expect judicial disdain. As the Eleventh Circuit noted this past winter:122
[Plaintiff] sought discovery of a "computer diskette or tape copy of all word processing files created, modified and/or accessed by, or on behalf" of five [of Defendant’s] employees over a two and one-half year period. [Plaintiff] made no attempt to narrow his request to something more meaningful and relevant during the discovery period despite an appropriate objection from [Defendant]. . . .
On appeal, [Plaintiff] has not tried to identify particular items within the expansive request nor has he provided a theory of relevance that might narrow the scope of his request.123
The appellate court therefore affirmed the denial of a motion to compel premised on the overbroad request.
The most recent restoration decision occurred in a Southern District of New York case discussed in more detail in Section II(D)(4) below. There, in the context of assessing the likelihood of discovering relevant evidence on inaccessible media such as back-up tapes, the court adopted a "small sample . . . fact-intensive" approach:124
Requiring the responding party to restore and produce responsive documents from a small sample of backup tapes will inform the cost- shifting analysis. . . . When based on an actual sample, the marginal utility test will not be an exercise in speculation -- there will be tangible evidence of what the backup tapes may have to offer. There will also be tangible evidence of the time and cost required to restore the backup tapes, which in turn will inform the second group of cost-shifting factors. Thus, by requiring a sample restoration of backup tapes, the entire cost- shifting analysis can be grounded in fact rather than guesswork.
Consequently, the Warburg court directed the parties to return to court for the cost-shifting analysis only after Defendant had "produce[d], at its expense, responsive e-mails from any five [of the 94 pertinent] backups tapes selected by [Plaintiff and had] then prepared an affidavit detailing the results of its search, as well as the time and money spent."125
121 Id. *34-37. 122 Wright v. AmSouth Bancorp., 2003 WL 245588 (11th Cir. Feb. 5, 2003) (affirming denial of discovery in ADEA illegal termination case), available at
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C. Inspection of Opponent's Computer System
A party might request to inspect its opponent's computer system to search for electronic information. Sometimes parties agree that a computer system will be made available for expert inspection and/or copying.126 If, however, the parties do not agree that computers or a computer system should be produced for inspection or copying, the requesting party must be able to explain the need for that discovery. Courts typically require evidence that the search will locate responsive information; any inconvenience will be justified; and the chances for harm will be minimized.127
This requirement was illustrated in Fennell v. First Step Designs, Ltd.,128 a discrimination case, in which a discharged employee sought creation-date evidence for a memorandum regarding some layoffs, including her own. Defendant produced a copy of the memo on computer disk. When Plaintiff could not determine the creation date, she sought access to Defendant's computer hard drive. The parties' competing computer experts disagreed as to whether dates of creation and last modification could be determined from the hard drive. The district court held a hearing and "directed the parties to submit a 'protocol' establishing procedures by which [Plaintiff] would have access to relevant materials."129 Defendant objected to Plaintiff's proposed protocol, which entailed a technician copying the entire hard drive, analyzing the copy off site, and later erasing the copy.130 Defendant submitted its own detailed protocol, which the court described as "extremely cumbersome and expensive."131
After reviewing the competing protocols and "apparently recognizing that the parties were unlikely to reach consensus," the district court reversed its earlier decision to permit additional discovery.132 It concluded that the hard drive copying presented a low likelihood
126 See, e.g., R.S. Creative, Inc. v. Creative Cotton, Ltd., 75 Cal. App. 4th 486, 490, 89 Cal. Rptr. 2d 353, 356 (1999) (imposing terminating sanctions based on Plaintiff's deletion of files, in violation of stipulation that "computers and diskettes would not be operated or touched . . . until [D]efendants' computer expert could examine them"). 127 See, e.g., Fennell v. First Step Designs, Ltd., 83 F.3d 526 (1st Cir. 1996), also available at
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of success, along with substantial risks and costs.133 The First Circuit affirmed, noting that the lack of detail in Plaintiff's protocol "cast even more doubt on the soundness of the technical basis for the discovery venture."134
Similarly, a state court of appeal reversed an order that had given Plaintiff unlimited access to Defendant's computer system in Strasser v. Yalamanchi.135 In Strasser, Plaintiff/doctor sought to inspect the computer system of Defendant, his ex-colleague. Plaintiff desired to locate and recover previously purged financial data. Defendant objected, claiming that the search would "allow carte blanche access, unlimited in scope, nature or purpose."136 Ultimately, the trial court ordered the requested discovery. On appeal, though, the court agreed with Defendant that unfettered access was inapt, especially given the lack of any solid evidence of data recoverability.137 Moreover, even had there been recoverability evidence, a tailored search would have been justified only if no other less intrusive means existed.138
In each of the decisions highlighted in Section II(B)(1)(b) above, a court has appointed a neutral computer expert to copy Defendant's to-be-searched computer hard drive(s) to try to recover deleted files.139 Each court required that the requesting party, Plaintiff, would pay the expert's resultant fees and costs.140 Additionally, in each case, to address concerns about possible attorney-client privilege waiver, each expert had to agree to the terms of the respective protective order, and the data recovered by the expert was to be turned over to defense counsel for pre-production review for privilege and
133 Id. 134 Id. at 533. 135 Strasser v. Yalamanchi, 669 So.2d 1142 (Fla. 4th Dist. Ct. App. 1996), review denied, 805 So. 2d 810 (Fla. 2001). 136 Id. at 1144. Defendant also claimed it would: constitute a wholesale intrusion into all proprietary business files and statutorily-protected patient information; and expose the system to harm through inadvertent deletion of files or the introduction of a virus. 137 Id. 138 Id. In that event, the trial court would have to "define parameters of time and scope, and . . . place sufficient access restrictions to prevent compromising patient confidentiality and to prevent harm to [D]efendant's computer and databases." 139 Simon Property Group L.P. v. MySimon, Inc., 194 F.R.D. 639, 641 (S.D. Ind. 2000) supp'd by, 2000 U.S. Dist. 8953 (S.D. Ind. June 15, 2000); Northwest Airlines, Inc. v. Local 2000 Int'l Brotherhood of Teamsters, Civ. Action No. 00-08 (D. Minn. Feb. 2, 2000); Playboy Enters., Inc. v. Welles, 60 F. Supp. 2d 1050,1055 (S.D. Cal. 1999), aff'd in part and rev'd in part on other grounds, 279 F.3d 796 (9th Cir. 2002). For URL’s for Simon and Northwest, see note 100 supra. See also Antioch Co. v. Scrapbook Borders. Inc., 210 F.R.D. 645, 652-54 (D. Minn. 2002). 140 Simon, 194 F.R.D. at 641; Northwest, No. 00-08, Protocol, at 3, ¶ 5; Welles, 60 F. Supp. 2d at 1054-55 & n.6.
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D. The Logistics of Producing Electronic Information 1. Production of Compilations of Electronic Information
Although the duty to preserve and produce back-up tapes and deleted files is a relatively novel issue, the general obligation to produce electronic information is well- established. The production of information in hardcopy form does not preclude the requesting party from receiving that same information in computerized form.142 A court also may require a party to compile electronic data into a particular format or structure requested by the opposing party.143 If a request is burdensome, a court may require the requesting party to not only show the need for the information but also agree to pay the costs of production.144 If the respective merits of the justification-versus-burden analysis are uncertain, the court may order the parties to the negotiating table.145
2. Compelling Creation of Electronic Information
In a peer-to-peer (P2P) copyright infringement suit, the Central District of California ruled that a technology provider cannot be required to collect and produce data regarding its customers' use of its product.146 The suit was brought by television executives and movie studios regarding the Replay TV 4000, a personal video recorder (PVR) that enables users to, among other things, store television programs for later viewing and to skip commercials when replaying a show.
141 Simon, 194 F.R.D. at 641; Northwest, No. 00-08, Protocol, at 3, ¶ 9; Welles, 60 F. Supp. 2d at 1055. An example of a protective order encompassing privilege issues accompanies the decision in United States v. Sungard Data Systems, 173 F. Supp. 2d. 24-30 (D.D.C. 2001) (extending confidential information access to two in-house attorneys for each Defendant, contingent on their compliance with protective order). See also Antioch Co. v. Scrapbook Borders. Inc., 210 F.R.D. 645, 652-54 (D. Minn. 2002). 142 Anti-Monopoly, Inc. v. Hasbro, Inc., 1995-2 Trade Cases (CCH) ¶ 71,218, 1995 U.S. Dist. LEXIS 16355, 1995 WL 649934, *2 (S.D.N.Y. Nov. 3, 1995), also available at
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Plaintiffs had sought discovery of documents and information regarding Defendants' customers, including identification of the television shows that the customers had recorded. In support of their request, Plaintiffs contended that "there [wa]s nothing unusual about directing a party to create software to 'retrieve information stored in computers.'”147 They argued that there is "a duty to extract relevant information to respond to an interrogatory."148
Initially, the Magistrate Judge ordered the requested discovery.149 Defendants obtained a stay of the Magistrate's order upon filing a motion for District Judge review of the order compelling discovery.150 In their motion for review, Defendants emphasized that the requested items were never in their possession because they have opted not to monitor customer usage.151 They contended that reinstatement of the discovery order would improperly force them to:
design and develop new software to operate the ReplayTV 4000. Plaintiffs have insisted that Defendants install that reformulated product into units within consumers' homes to silently monitor private television viewing behavior and generate new electronic data about such uses. The product would then have to transmit that new electronic data from the consumers' home units to Defendants' servers, to be stored indefinitely, and made available to Plaintiffs in th[e] litigation.152
Defendants contended that the Magistrate's order would "not merely direct [them] to write ancillary software to extract or process in a new way the data it already possesses" but also to create software that would not process any information already contained in
147 See Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 362 (1978). Supplemental Brief in Support of Motion to Compel, at 4, PDF page 5 (Apr. 11, 2002), available at
Id. at 4. 149 Minute Order, at 1 (Apr. 26, 2002), available at
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[their] servers."153 Defendants asked the court to distinguish prior compilation production cases154 as having entailed either retrieval or software design to enable the extraction of already extant electronic business records.155 They posited that, in contrast, a party cannot be "required 'to prepare, or cause to be prepared,' new documents solely for their production."156
The Replay TV defendants also argued that "[w]hile Rule 34 may require compilations from existing databases, no authority supports the proposition that Rule 34 can require creation of new data that never existed - much less the reformulation of a consumer product to create such data."157 The district court judge accepted Defendants' interpretation of Rule 34, ruling that "the information sought by [P][laintiffs is not now and has never been in existence. The [portion of the Magistrate's] Order requiring its production is therefore contrary to law."158 That determination may have a great impact on future discovery disputes in which one party seeks to compel another to compile, manipulate and/or generate data.
3. Facilitating Opponent's Access of Electronic Information
A court may require the producing party to make it easier for the requesting party to access electronic information as an alternative to ordering massive hardcopy production. For example, in an employment discrimination case, the Seventh Circuit upheld the trial court's decision to deny Plaintiff's motion to compel production of what would have amounted to 210,000 hardcopy pages of e-mails.159 Defendant had initially produced the e-mails on four-inch tapes, an inaccessible format for Plaintiff/employee's counsel, who had neither the software nor the equipment to read them. To accommodate the employee, the district court required the employer to: download the data from the tapes to conventional computer disks or a computer hard drive; loan the employee a copy of the
153 Id. 154 PHE, Inc. v. Dep't of Justice, 139 F.R.D. 249, 257 (D.D.C. 1991); Anti-Monopoly, Inc. v. Hasbro, Inc., 1995 U.S. Dist. LEXIS 16355 (S.D.N.Y. Mar. 28, 2000), available at
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necessary software; or offer him on-site access to its own system.160 Only if those options had ultimately failed (they did not) would the court have ordered the parties to split the cost of copying the e-mails in hardcopy form.161
In a 2002 Southern District of New York decision, Goord v. Jones, practical considerations seemed to hamstring a judge who might otherwise have required Defendant to produce "data in electronic, manipulable form [to] facilitate expert analysis."162 Goord entails a class action brought by inmates to challenge the "double-celling" practice of the New York State Department of Corrective Services ("DOCS"). Nearly six years into the litigation, the inmates sought production of electronic records and databases maintained by state correctional authorities. Judge Lynch explained that:
[T]he expert affidavits supplied by defendants, and uncontradicted by any evidence offered by plaintiffs, persuasively establish that . . . [b]ecause the databases were designed for the operational purposes of prison administrators, the data desired by plaintiffs, while perhaps present in the databases, are not readily available for the statistical manipulations proposed by plaintiffs. . . . Thus, the databases in question are not simply collections of lists or numbers that can be easily extracted and correlated with other numbers; rather, each of the requested databases has 'been constructed to support the interactions of hundreds of concurrent users rather than to support the analytical activities of a few.' . . .
Thus, providing plaintiffs with any meaningful access to aspects of this system is not a matter of duplicating discs and handing over copies. The data that would presumably be useful to plaintiffs in analyzing patterns of disease and violence or correlating such patterns with double-celled inmates are not simply numbers maintained in a simple set of files that can be downloaded into some (unspecified) statistical analytic program and then crunched in some (unspecified) way to produce meaningful results. DOCS personnel would need to prepare extensive documentation of the structure of the programs and databases to enable any experts retained by plaintiffs to understand the layout of the data, the meaning of codes, and the sources from which those codes can be derived.163
Four practical considerations doomed Plaintiff's "plausible claim" that "manipulable
160 Id. at 1171. Cf. GTFM, Inc. v. Wal-Mart Stores, 2000 U.S. Dist. LEXIS 3804, 2000 WL 335558, *1 (S.D.N.Y. Mar. 30, 2000) (ordering Defendant to make available person most familiar with its computer records to provide reasonable assistance while Plaintiffs' data retrieval expert would be given computer access). 161 Sattar v. Motorola, Inc., 138 F.3d 1164, 1171 (7th Cir. 1998) 162 Jones v. Goord, 2002 U.S. Dist. LEXIS 8707, *39 (S.D.N.Y. May 16, 2002). 163 Id. at *28-29, 31.
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data" was needed.164 First, even though he acknowledged the financial constraints of pro bono counsel, the judge was troubled by Plaintiffs' lack of an expert; this deficiency had rendered Plaintiffs' discovery plan quite general.165 Second, much of what the inmates hoped to discover was contained in more than 700,000 pages of hardcopy records already produced in paper form, at considerable state expense.166 Third, the factual context entailed the same type of "significant security[/confidentiality] concerns" typically found in trade secrets cases "in a business context."167
Lastly, Plaintiffs' request had been made very late in a case that had been pending for more than six years and after numerous extensions of the discovery cutoff date.168 Therefore, the court declined to "impose additional burden, expense and risk of harm on the parties, and especially on [D]efendants, at this belated hour, after the expenditure of so much effort and expense, and on the undocumented hope of obtaining such speculative benefits."169
In contrast, in another civil case against the government, a state's highest court went quite far in finding the discoverability of electronic reports and databases.170 The discovery dispute in Guillen v. Pierce County arose when, to develop a wrongful death claim, a widower filed a separate lawsuit seeking disclosure of historical traffic accident reports. Even though relevant federal and state statutes precluded the reports from being publicly disclosed or from ultimately being admitted into evidence, the Washington high court ruled that the reports could be discoverable in the widower's case and in a consolidated similar case.171 Though the United State’s Supreme Court ultimately reversed, the potential significance for future electronic discovery disputes is nonetheless evident in the Washington high court’s observation that:
As governments everywhere move from paper and microfiche
164 Id. at *39. One has to wonder about the candor of Defendants' evidence, given that one of their defenses was that the information had already been produced in printouts. If the extraction process were indeed so complicated, then how did Defendants extract the information to produce the printed reports? 165 Id. Mere speculation of another sort doomed another Plaintiff's recent electronic discovery request in Stallings-Daniel v. Northern Trust Co., 2002 U.S. Dist. LEXIS 4024 (N.D. Ill. Mar. 12, 2002). The court denied the employee-Plaintiff's request to use an expert to search company-Defendant's e-mail system to determine whether e-mails produced to her in hardcopy had been altered. The court found that Plaintiff's request "was supported by nothing more than speculation that [D]efendant had somehow altered its e-mails before producing them." 2002 U.S. Dist. LEXIS 4024, at *1-2. 166 Jones v. Goord, 2002 U.S. Dist. LEXIS 8707, at *42. 167 Id. at *37. 168 Id. at *46-47. 169 Id. 170 Guillen v. Pierce County, 144 Wash. 2d 696, 31 P.3d 628 (2001), also available at
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documentation into the age of twenty-first century information technology, public records are increasingly being stored - even created – in digital format, then added to virtual databases that are accessed, in streams of bits and bytes, by vast networks of governmental agencies, often across jurisdictional boundaries.172
4. Allocating Compilation and Production Costs
The fact that production of electronic information will result in substantial expense does not necessarily mean that the requesting party will be required to pay the costs of production.173 In fact, sophisticated companies’ protestations as to the burdens of retrieval are increasingly falling on deaf ears.174 Who pays for the costs of searching, extracting, and producing electronic data depends upon the parties' relative circumstances and how much, if at all, the production would also benefit the responding party.175 In balancing such factors in various factual contexts, federal district court cases have reached disparate outcomes. Significantly, a very recent decision’s new standard appears to restrict a responding party’s attempt to shift retrieval costs to the requesting party.176
Some decisions have shifted to the requesting party the costs of compiling and
172 Id. at 646. For a discussion of the impacts of efiling and egovernment, see generally William A. Fenwick & Robert D. Brownstone, “Efiling: What Is It? What are its Implications?” 19 SANTA CLARA COMPUTER & HIGH TECH L.J. 181 (2002), available at
32 producing electronic information.177 In one case, the Linnen v. A.H. Robins fen/phen class action, the court ordered the responding party to bear the expenses of back-up tape restoration.178 Yet, the Linnen judge reserved a ruling on fees and costs associated with additional pertinent depositions sought by the requesting party until after the parties had an opportunity to evaluate information generated from the back-up tapes.179 In another case, where the responding entities were non-parties, the court seemed to be more sensitive to the assertion that compliance would be overly burdensome.180
Other decisions have declined to remove the cost burden from the shoulders of the responding party.181 In one such instance, a court mandated payment of all expenses unnecessarily incurred because of Defendant's inaccurate disclosure of its computer capabilities.182 In another case, a federal antitrust class action, Plaintiffs sought to compel one of the defendants, Ciba-Geigy Corp. ("Ciba"), to produce responsive, computer-stored
177 See Byers v. Illinois State Police, 2002 US Dist. LEXIS 9861, * 38 (N.D. Ill. June 3, 2002) (in employment discrimination action, “[r]equiring the plaintiffs to pay part of the cost of producing the [archived] e-mails [from one individual Defendant to Plaintiff] will provide them with an incentive to focus their requests”); Simon Property Group L.P. v. MySimon, Inc., 194 F.R.D. 639, 641 (S.D. Ind. 2000), supp'd by, 2000 U.S. Dist. 8953 (S.D. Ind. June 15, 2000); Northwest Airlines, Inc. v. Local 2000 Int'l Brotherhood of Teamsters, Civ. Action No. 00-08, Order, at 3 ¶ 5 (D. Minn. Feb. 2, 2000); Playboy Enters., Inc. v. Welles, 60 F. Supp. 2d 1050, 1054-55 & n.6 (S.D. Cal. 1999), aff'd in part & rev'd in part on other grounds, 279 F.3d 796 (9th Cir. 2002). 178 Linnen, 1999 Mass. Super. LEXIS 240, at *22-23 (imposing all fees and costs associated with e-mail discovery issue, including depositions of IT representatives, in light of Defendant's: lack of cooperation in responding to requests on e-mail issues; its denial of existence of back-up tapes; and its delay in informing Plaintiff of existence of archived back-up tapes). 179 In dicta, the court stated that:
[I]t certainly would be fair to require [Defendant] to bear the costs associated with the retaking of any depositions previously conducted by the Plaintiffs as well as any appropriate new depositions. Where the necessity of engaging in further depositions stems from the Defendant's delay in producing documents requested, at a minimum, over a year ago, then the defendant must shoulder the costs attendant upon such a delay.
Id. at 20. 180 Braxton v. Farmer’s Ins. Group, 2002 U.S. Dist LEXIS 18085, *7 (N.D. Ala. Sep. 13, 2002). In Braxton, a plaintiff served subpoenas requesting the production of e-mail by non-party insurance agents affiliated with Defendant. Defendant moved to quash, arguing that compliance would impose a substantial burden on the non-party agents. Id. Acknowledging that burden, the court refused to compel production absent a showing by Plaintiff that production of all such e-mail and other documents from Defendant itself would have been insufficient. Id. 181 See, e.g., Bills v. Kennecott Corp., 108 F.R.D. 459 (D. Utah 1985) (declining to shift from Defendant/employer to Plaintiffs/employees, given amount of expenses and relative abilities to bear cost). 182 GTFM, Inc. v. Wal-Mart Stores, 2000 U.S. Dist. LEXIS 3804, *7-10 (S.D.N.Y. Mar. 30, 2000), enforced, 2000 U.S. Dist. LEXIS 16244 (S.D.N.Y. Nov. 9, 2000) (ultimately awarding requesting party $109,753.81 in expenses and attorney fees). In GTFM the court also factored in Defendant's poor track record on compliance with discovery requests in litigation generally, not just in that particular case.
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e-mails at its own expense.183 Ciba objected, arguing that the request was overly broad and burdensome, and that Plaintiffs should bear the retrieval costs.184 Ciba estimated it had the equivalent of at least 30 million pages of e-mail data stored on back-up tapes, and that it would cost from $50,000 to $70,000 to search for responsive e-mails, eliminate duplicates, and format the messages. The court declined to impose on Plaintiffs that cost because it resulted from Ciba's record-keeping scheme and its choice of electronic storage.185 The court only required Plaintiffs to pay $0.21 per page for the e-mails that they selected for copying; and it also ordered them to narrow the scope of their electronic information request.186
The landscape on the cost-shifting issue shifted greatly187 last month due to the new multi-factor test pronounced in Zubulake v. UBS Warburg LLC, 2003 U.S. Dist. LEXIS 7940 (S.D.N.Y. May 13, 2003) (“Warburg”)188 by Judge Shira A. Scheindlin. The Warburg grant of a motion to compel arose in an employment litigation entailing claims for gender discrimination and illegal retaliation. The court criticized prior decisions as having engaged in cost-shifting analysis as a knee-jerk reaction, based on a faulty “assum[ption] that an undue burden or expense may arise simply because electronic evidence is involved.”189 As a matter of policy, Warburg noted that “cost-shifting may effectively end discovery, especially when private parties are engaged in litigation with large corporations. As large companies increasingly move to entirely paper-free environments, the frequent use of cost- shifting will have the effect of crippling discovery in discrimination and retaliation cases.”190
As its threshold issue, the Warburg decision divided the world of electronic information into two distinct broad categories:
1) “[D]ata that is kept in an accessible format, [as to which] the usual rules of discovery191 apply: the responding party should pay the costs of producing responsive
183 In re Brand Name Prescription Drugs Antitrust Litig., 1995 U.S. Dist. LEXIS 8281, *2, 1995 WL 360526 (N.D. Ill. June 15, 1995), also available at
34 data.”192
2) “Electronic data [that] is relatively inaccessible, such as in backup tapes,” as to which a “court should consider cost-shifting.”193
Warburg then modified the multi-factor test espoused by a prior Southern District of New York decision.194 Under the new Warburg approach, once a small sample of inaccessible data has been produced,195 “in conducting the cost-shifting analysis, the following factors should be considered, weighted more-or-less in the following order”:196
1. The extent to which the request is specifically tailored to discover relevant information;
2. The availability of such information from other sources;
3. The total cost of production, compared to the amount in controversy;
4. The total cost of production, compared to the resources available to each party;
192 Warburg, 2003 U.S. Dist. LEXIS 7939, *49 (emphasis added). According to Warburg, the three subsets of “accessible” media, “listed in order from most accessible to least accessible,” are:
a) “Active, online data,” such as hard drives;
b) “Near-line data,” such as optical disks.
c) “Offline storage/archives . . . [,] lack[ing] ‘the coordinated control of an intelligent disk subsystem,’ and is, in the lingo, JBOD (“Just a Bunch of Disks”). Id. at 30-31. 193 Id. at *49-50. According to Warburg, the two subsets of “inaccessible” media, in order from more accessible to less accessible,” are: a) “[b]ackup tapes;” and b) “[e]rased, fragmented or damaged data.” Id. at 31-32. 194 Rowe Entertainment, Inc. v. William Morris Co., 205 F.R.D. 421, 2002-1 Trade Cas. (CCH) P73, 567 (S.D.N.Y. 2002) (upon applying eight-factor balancing approach, ordering Plaintiffs to bear costs of production and Defendants to continue to bear expense of reviews for privileged or confidential material). The Warburg test eliminated two of the Rowe factors, namely "the specificity of the discovery request" and “the purposes for which the responding party maintains the requested data." Id. at *40-41. The "purposes" concept was eclipsed by Judge Scheindlin's accessibility/inaccessibility demarkation: "Whether the data is kept for a business purpose or for disaster recovery does not affect its accessibility, which is the practical basis for calculating the cost of production." Id. at 41. The court even noted that, in "certain limited instances where the very purpose of maintaining the data will be to produce it to the opposing party. . . . cost- shifting would not be applicable in the first place; the relevant statute or rule would dictate the extent of discovery and the associated costs." Id. at *42 & nn. 69-70 (citing SEC requests for “communications sent by [a] broker or dealer . . . relating to his business as such” because "such communications must be maintained pursuant to SEC Rule 17a-4, [17 C.F.R. § 240.17a-4]." 195 Warburg, 2003 U.S. Dist. LEXIS 7939 at *50. 196 Id.
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5. The relative ability of each party to control costs and its incentive to do so;
6. The importance of the issues at stake in the litigation; and
7. The relative benefits to the parties of obtaining the information.197
In Warburg, this new test was applied to a pertinent set of 94 back-up tapes that had previously been identified as responsive. The court ordered Defendant to produce at its own expense: “all responsive e-mails that exist on its optical disks or on its active servers[;] . . . and responsive e-mails from any five back-up tapes selected by [Plaintiff].”198 The court also ordered Defendant to "prepare an affidavit detailing the results of its search, as well as the time and money spent. After reviewing the contents of the backup tapes and UBS’s certification, the Court will conduct the appropriate cost-shifting analysis."199
III. PRACTICAL LITIGATION TIPS REGARDING ELECTRONIC DISCOVERY
A. Tips for Requesting Electronic Information from the Other Side 1. Overview/Strategy
The amount of time and attention you devote to seeking discovery of electronic data should depend upon the size of the case, the matters at issue, and the time and resources available for the case. Early in the case (and if possible before the case is filed), you should think about what types of electronic information are likely to exist and are needed to prove the case. Before asking for the production of electronic data, such as back-up tapes and deleted files, weigh the costs against the potential benefits. Back-up tapes, for example, must be restored and searched for responsive information; depending upon the number of tapes, it can entail a costly and time-consuming process. If the circumstance justifies requesting information in electronic form, obtain expert assistance in framing and justifying the request. Keep in mind that the opponent will likely ask your client for reciprocal information, if both parties rely on electronic record keeping and processing systems. Even if not served initially, the request could come later. If you plan to press an opponent to preserve and produce a broad amount of electronic information, make sure your client is doing the same and that the collection and preservation efforts are thorough, adequate, and above reproach.200
197 Id. 198 Id. at *50-51. 199 Id. at *51. 200 See, e.g., Procter & Gamble Co. v. Haugen, 179 F.R.D. 622, 631-32 (D. Utah 1998) (imposing sanctions on Plaintiff for failure to preserve corporate e-mails of "five individuals that [Plaintiff] had itself identified as having relevant information" when, earlier in case, Plaintiff had insisted that opposing party preserve all its corporate e-mail communications until relevant material could be extracted), also available at
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2. Preservation Requests and Orders
If electronic information is important, promptly notify the other side of your intent to request it. Early in the case, you should consider sending a letter to opposing counsel reminding him or her of the obligation to preserve evidence, including electronic data, and delineating the categories of electronic evidence your client will be seeking (e.g., e-mails, databases, spreadsheets, back-up tapes and transaction records). Elucidate your side's expectations and desires.
A powerful tool in the effort to obtain electronic information is a preservation order. The duty to preserve evidence exists independently of a court order.201 Yet, to highlight that obligation, to set forth the ground rules, and to provide sharper teeth, you should ask the court to enter a preservation order specifically identifying electronic information.202 The absence of a court order may narrow the scope of the available sanctions should evidence destruction ensue.203
In one case Defendant moved for sanctions based on Plaintiff Procter & Gamble's (P&G) alleged destruction of e-mail communications.204 In the absence of a preservation
201 The duty to preserve is not necessarily contingent on an existing court order. See West v. Goodyear Tire & Rubber Co., 167 F.3d 776, 779 (2d Cir. 1999) ("[e]ven without a discovery order, a district court may impose sanctions for spoliation, exercising its inherent power to control litigation" (citing Chambers v. Nasco, Inc., 501 U.S. 32, 43-43 (1991)). 202 For some reported cases containing examples of preservation orders, see Linnen, 1999 Mass. Super. LEXIS 240, at *23-24 (initial ex parte order mandated "all necessary steps to assure that . . . employees, agents, accountants and attorneys refrain from discarding, destroying, erasing, purging or deleting any such documents including . . . computer memory, computer disks, data compilations, e-mail messages sent and received and all back-up computer files or devices, including . . . electronic, optical or magnetic storage media”); Smith v. Texaco Inc., 951 F. Supp. 109 (E.D. Tex. 1997) (in employment discrimination class action, temporary restraining order prohibited Defendants from moving, altering or deleting any potentially pertinent electronic records; court altered TRO to permit modifications in ordinary course of business and deletion of documents if hardcopies retained), also available at
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order, P&G had responded to Defendant’s requests for production by searching its e-mail databases for responsive evidence and then deleted non-responsive data. Defendant challenged the adequacy of those searches, claiming that responsive evidence had been deleted. The court concluded that it could not fairly judge the adequacy of Plaintiff's searches, with the exception of the deletions of the e-mail of five individuals whom Plaintiff itself had identified as having relevant information.205 The court explained:
[W]hile the duty to preserve evidence exists independently of court order, a court order would have delineated the scope of P&G's duties, provided clear evidence that P&G was on notice of the relevance of the e-mail communications, and furnished a standard by which this court could judge the adequacy of P&G's production efforts.206
In another case, the court required "all parties to preserve the integrity of all computers . . . at issue . . . without any spoilation [sic] of any information contained therein."207 Elaborating on that mandate, the judge stated: "[I]f it's 'don't push the delete button' or if it's 'don't change the C drive' or 'don't pull the plug at the wrong time' or 'don't take a sledge hammer to it,' I don't want it spoiled in any way, okay, so don't limit [the preservation order's language]."208
Consider expedited or early depositions of the opposing party's employees who are most knowledgeable about the opponent's information technology uses and systems. Such early discovery should eliminate some of the types of delay and vagueness arguments successfully raised by the party opposing discovery in Goord.209
3. Considerations Particular to Electronic Information a. Specifically Request All Desired Types of Items
To request all needed forms of electronic information, make sure your definition of documents particularizes various forms of electronic media.210 Also, do not merely rely upon a broad definition of "documents." Such broad definitions are commonplace, and the opposing party may overlook them. If, for example, you desire e-mails, spreadsheets and databases relating to specified topics, then specify those items in the requests
205 Id. 206 Id. at 631. 207 Illinois Tool Works, Inc. v. Metro Mark Prods., Ltd., 43 F. Supp. 2d 951, 954 (E.D. Ill. 1999). 208 Id. 209 2002 U.S. Dist. LEXIS 8707, at *28-29, 46-47. 210 See, e.g., Linnen, 1999 Mass. Super. LEXIS 240, at *4 n.3 ("document" defined to include "any record or compilation of information of any kind or description however made, produced, or reproduced, or stored whether by hand or by any electronic, photographic, magnetic, optical, mechanical, computer or other process or technology"); R.S. Creative, Inc. v. Creative Cotton, Ltd., 75 Cal. App. 4th 486, 489, 89 Cal. Rptr. 2d 353 (1999) ("definition of 'document' in deposition notice included computer tapes, discs and any information stored in a computer").
38 themselves.211 That way, there can be no mistake as to what your client seeks. In addition, courts do not look favorably on unduly broad and burdensome definitions. For example, one court denied a motion to compel because "Plaintiffs are not entitled to unbridled access [to D]efendants' computer system or to canvass all of Defendants' debtor files."212
Though one should be as proactive as possible from the get-go, occasionally, in the interests of justice, a court will modify an overly broad discovery request. In one 2002 case,213 Defendants claimed that the discovery request for "all summary documents" (including electronic data) was overbroad.214 Plaintiffs alleged that Defendants had constructed a rebuttal report based on a couple of million entries it had deleted from a database and thus deliberately withheld. "The data was not produced by Defendants until after [Defendants'] rebuttal report was submitted, after Plaintiff's expert report had been submitted and Plaintiffs' expert had been deposed."215 The court found that Defendant "should have produced the disputed database."216 After considering a range of responses (including sanctions, which it declined to impose), the court decided to "allow Plaintiffs the opportunity to respond to Defendants' rebuttal expert report [and to deny] Defendants . . . the opportunity to reply to Plaintiffs' response to the withheld information."217
In a dispute between competing software companies regarding allegedly improper copying and use of proprietary source code, Plaintiff sought production of the entire source code for each of Defendant's products from the previous three and one-half years.218 Plaintiff also requested copies of all hard drives that had access to the server from which
211 At least until such time as judges are more comfortable with the concept of electronic information, the prospect of defeating a motion for a protective order as well as the success of any "meet and confer" conference will be dependent on the specificity of the request for electronic information.
A large number of judges reject out of hand a request for "all" of anything. Rather than attempting to encompass "electronic information" in the definition of "document," in some situations requesting counsel may want to differentiate hardcopies of information from copies of electronic information. 212 Van Westrienen v. Americontinental Collection Corp., 189 F.R.D. 440, 441 (D. Ore. 1999). See also Sabouri v. Ohio Bureau of Employment Servs., 2000 WL 1620915, *5 (S.D. Ohio Oct. 24, 2000) ("[a]lthough [P]laintiff is entitled to view files that relate to him or to the claims or defenses asserted in this action, he has no right to rummage through the computer files of the Defendants"). 213 DeLoach v. Philip Morris Cos. 206 F.R.D 568 (M.D.N.C. 2002). 214 When Defendant claimed Plaintiff had a responsibility to contact opposing counsel to discuss the missing data, the court noted that Plaintiff did not know any data was missing until Defendants filed their expert rebuttal report. DeLoach v. Philip Morris Cos., 206 F.R.D 568, 573 (M.D.N.C. 2002). "[T]he disputed data was readily available from [Defendants'] database, required no additional preparation, and was obviously relevant enough that Defendants saw fit to provide it to [its expert]." Id. at 574. 215 Id. at 573. Defendant then deleted more than two million entries (without informing Plaintiff of the deletion) and provided Plaintiff with "the single item that was specifically and unambiguously requested." Id. 216 Id. at 574. 217 Id. 218 Symantec Corp. v. McAfee Assocs., Inc., 1998 U.S. Dist. LEXIS 22591, *10 (N.D. Cal. Aug. 14, 1998).
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the information at issue was purportedly copied.219 The court ruled that "[p]roduction of this magnitude would be unduly burdensome to [Defendant], both in terms of volume and in terms of the proprietary nature of the information sought."220
b. "Meet and Confer" Negotiations
It is a good practice to discuss with the other side the logistics of electronic discovery early in a litigation. Especially in an action in which electronic information is likely to be significant, such a discussion is likely necessary to assure compliance with Fed. R. Civ. P. 26(f). Rule 26(f) provides in pertinent part that "the parties must, as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due under [Fed. R. Civ. P.] 16(b), confer . . . to develop a proposed discovery plan." As one federal district court judge pointed out last year:
In the electronic age, this [Rule 26(f)] meet and confer should include a discussion o[f] whether each side possesses information in electronic form, whether they intend to produce such material, whether each other's software is compatible, whether there exists any privilege issue requiring redaction, and how to allocate costs involved with each of the foregoing.221
As part and parcel of "meet and confer," you might try to informally obtain information about your opponent's computer system, including its functionality, breadth, scope, and number of users. Consider methods to search for responsive information. Some e-mail systems have search functions that could expedite the process; also, there may be software to help search databases. It would be useful to obtain a copy of the opponent's document retention or records management policy and also a copy of its e-mail policy. In addition, hardcopy documents may reveal information about the opponent's computer system, including the use of third party software, system flow charts, file naming conventions, e-mail programs and the like.222
219 Id. 220 Id. 221 In re Bristol-Myers Squibb Securities Litig., 205 F.R.D. 437, 443-45 (D.N.J. 2002) ("denying Defendants' [request] for . . . full reimbursement for paper copying costs" where Defendants had "dumped" more than three million pages on Plaintiffs; also denying "Defendants' [request] . . . that the Plaintiffs pay one-half the costs of scanning documents [i]nto electronic form in favor of requiring Plaintiffs "to pay the nominal cost of duplicating compact discs"). See also "[G]ood faith attempt at an informal resolution" required by, among other provision, California Code of Civil Procedure §§ 2017(c)-(d), 2025(g), (o), 2031(f), (m), 2033(e), (l); Cal. Civ. Proc. Code § 2017(e), available at
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A cautionary tale as to the pitfalls of delaying discussion of the logistics of computer discovery emerges from Danis v. USN Communications, Inc.223 There, the court criticized the parties for their failure to communicate or to gain "a complete mastery of what types of documents were generated by [Defendant] in the ordinary course of business, how they were used, or their significance."224
c. Details Of the Opponent's Computer System
Specific, well-thought-out and thorough requests for electronic data should be made as early in the litigation as possible. Thus, to prevent the kind of prejudicial delay that doomed the Goord Plaintiffs, you should follow the wise course of initially serving interrogatories, and then following up with a document request and/or a deposition notice accompanied by a list of requested documents and data. Interrogatories can be used to obtain preliminary information about the layout of an opponent's computer system, including hardware, software, software applications, back-ups, e-mail and voicemail administration, and similar issues. When follow-up questions flow from the interrogatory responses, and/or when the location and/or amount of computer data are important, you can then notice the deposition(s) of person(s) with knowledge, such as the Information Technology (IT) Director. In federal court Rule 30(b)(6) depositions can be used to avoid using up many of the allowed depositions.225 Some outlines of sample questions for IT
improved technologies and both time and financial constraints, particularly when the nature of the testimony or other factors do not require the personal attendance of the attorney. Effective 2002, such practices are expressly authorized by [California] statute." Richard E. Best (San Francisco Superior Court Discovery Commissioner), "Virtual Discovery: Conducting Discovery in a Web Centric Environment"
In addition to Vermont and California, at least 15 other "states have rules governing video depositions, according to the National Center for State Courts." Rebecca Porter, "The Next Step: Taking Depositions Online" (Trial Magazine Aug. 2001).
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30(b)(6) depositions are available on the web.226
A deposition would be particularly useful if, for example, the other side is resistant to the notion of electronic discovery and/or you have reason to believe all responsive electronic information has not been produced in response to a prior discovery request. More broadly, however, some courts have expressly approved the use of depositions to learn about a party's computer system and electronic information.227
Third parties may possess electronic information of a party. For example, a third party may administer a company's Internet or intranet service, and/or may possess back- ups of e-mails. In the era of increasingly used Application Service Providers (ASP's) and multi-faceted web services,228 this consideration is now even more important than ever. A third party consultant may have been used to administer system back-ups, and may thus possess copies of back-up tapes. In either event, you might consider subpoenaing electronic information in the possession of the third party.229
The existence of an alternative source can severely undercut a motion to compel production of electronic data from a party. For instance, one court found that the prejudice to Plaintiffs resulting from Defendants' failure to produce information from a database was mitigated by Plaintiffs' ability to obtain that information from a third party.230 And another court denied an emergency ex parte application for a temporary restraining order to prevent anticipated destruction and concealment of computer files, ruling that "Plaintiffs' own complaint and . . . application reveal[ ] ample alternative sources of proof."231
226 See, e.g., Paul French, “Unlocking E-Evidence: Know How to Discover Computerized Information,” L.A. D.J. (Aug. 13, 2002), available at
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4. Parameters of Seeking Court Intervention
If you cannot reach a compromise and the other side is refusing to produce electronic information, then take action promptly. Especially in this era of XML-generated websites and database proliferation, electronic data is rarely static. Such data is dynamic, and is constantly modified, deleted and/or compromised. If there are technical issues in dispute, carefully consider the information and education the court will need to decide those issues. If the existence of the requested information is at issue, marshal your evidence to show that the information exists and that your request is not a fishing expedition. Carefully limit your requests to information you really need. In addition, to help reduce the time and effort involved, consider practical limits on searches (e.g., date restrictions, limitations to certain search terms and/or, if appropriate, limitations to computers used by a reasonable list of pertinent individuals). For voluminous electronic databases, the requesting party might ask for searches of the databases using specific key word searches. If the parties cannot agree upon the nature and scope of those searches, let alone their key words, they can ask the court to resolve the impasse.232
If a Defendant proves uncooperative in discovery, a court may be more receptive to a Plaintiff's request for extensive electronic discovery.233 For instance, in Tulip,234 a patent case, the court granted Plaintiff's customized discovery request that Defendant make its senior executives' e-mail records available, after having an opportunity to address privilege and confidentiality concerns.235 Plaintiff's proposed procedure was deemed "fair, efficient, and reasonable."236 Defendant had to "provide the e-mails from the hard disks of the identified executives in electronic form to [Plaintiff's consultant,]" who would "search the e- mails based on an agreed upon list of search terms."237 Plaintiff was directed to give
232 See, e.g., Procter & Gamble, 179 F.R.D. at 632 (of 25 proposed search terms allowed by magistrate judge: certain word searches were too narrow, leaving out discoverable and relevant subjects; and another was overly broad, thus reaching into non-discoverable matters or yielding so much information as to be "unwieldy for any purpose legitimately within the current framework of the litigation"). See also Alexander v. FBI, 194 F.R.D. 316 (D.D.C. 2000) (in "Filegate" case, narrowing Plaintiff's request to search more than 50 individuals' e-mail via 37 proposed search terms to 33 individuals via 20 search terms). 233 See Tulip Computers Int'l B.V. v. Dell Computer Corp., 2002 U.S. Dist. LEXIS 7792 (D. Del. Apr. 30, 2002), also available at
Id. at *19. 236 Id. 237 Id.
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Defendant a list of e-mails containing those terms, but was not to read the e-mails until Defendant had an opportunity to review them to ensure that privilege and confidentiality concerns were not compromised.238
A court may also partially grant a request for information stored in a database. In a racial discrimination class action, Plaintiffs – all African American women – were searched by Customs following their arrival at Chicago's O' Hare International Airport on international flights.239 To support their various claims, Plaintiffs sought to discover "the names and addresses of passengers included in [one of four] computer database[s] . . . provided during [previous] discovery."240 Plaintiffs contended that they needed additional information about persons who were searched by Customs officials but not arrested or subject to seizure of objects (a "Negative Search"). Plaintiffs asserted that the other data was needed for "certain statistical analysis."241 Plaintiffs also sought to contact a sampling of nonparty passengers to interview them about their Customs treatment. The court ordered Defendants to "provide [passengers'] names, birth dates, and addresses" subjected to Negative Searches, but forbid all parties from "contact[ing] any of the nonparty passengers disclosed in any of the computer databases."242
5. Assessing the Adequacy of Opponent's Electronic Production
Test the adequacy of your opponent's search efforts and production. At a deposition, ask the witness whether he or she:
• searched his or her computer and to delineate the types of information stored thereon;
• was instructed to preserve information, including electronic information.
• possesses floppy disks, jaz disks, zip disks, flash memory devices and/or CD- ROM's containing pertinent information;
• uses a laptop and/or other home computer for work purposes.
Ask about the configuration of deponent's computer or workstation-- what it is used for and what information is saved to a storage device. Also, inquire to identify all others, such as assistants, secretaries, or other persons, who have retained and still retain the deponent's electronic information.
238 Id. 239 Anderson v. Cornejo, 2001 U.S. Dist. LEXIS 2330 (N.D. Ill. March 6, 2001). 240 Id. at *9. 241 Id. at *16. 242 Id. at *24-25.
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B. Tips for Responding to Electronic Information Production Requests 1. Respond to Preservation Requests
It is wise to respond promptly to a preservation letter, including your specific objections and inquiring about the basis for the demand. You might consider seeking a protective order if your opponent's requests appear excessive or unreasonable.
2. Advising Client of Duties to Preserve and Communicate
It is advisable to inform your client of the duty to preserve evidence, and to explain the potential categories of discoverable information, including electronic information. Depending upon the size of your client and the circumstances, it may be advisable for a company officer to communicate with the employees about the lawsuit -- as well as the obligation to preserve all forms of information. This communication should outline the categories of documents and other information to be retained.
The request to preserve should be unequivocal, and, if appropriate, should explain the consequences of a failure to preserve, including penalties and sanctions. Such an explanation is even more warranted by virtue of the possibility – noted above in Section II(A)(1)(c) – that a court might hold a corporate officer personally responsible for a corporation's failure to preserve relevant evidence. Down the line, attorneys should follow up with a client’s officers and/or administrators to insure that they have understood and followed through with document retention and collection policies, and have advised their fellow employees appropriately.
3. Inventory and Search Your Client's Computer System
Assess your client's computer system. It would be helpful to understand the layout and structure of the computer system, as well as the locations and sources of electronic information. If there are numerous sources of electronic information, you may need to devise a strategy for searching electronic information (on the network and individual hard drives). For organizational purposes and in anticipation of a subsequent dispute, it would be helpful to keep track of your electronic search efforts. You may eventually be pressed to show the steps taken to preserve, collect, and extract responsive information.
Determine the persons who may have discoverable or relevant information. You should search for and preserve the electronic data of the persons who were, or are, involved in the matters at issue, including, for example, persons:
• identified in the pleadings, witness lists, and initial/mandatory disclosures; and
• who may appear as deponents or maybe also as trial witnesses.
In Procter & Gamble, monetary sanctions were imposed against Plaintiff for failing to search or preserve the e-mail communications of five key employees whom Plaintiff had
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identified as having relevant information.243 That case serves as a reminder to involve information custodians in the preservation and searching processes. Expect that, when a custodian is deposed, he or she will be asked questions about the efforts undertaken to search for and produce responsive documents.
4. Consider Retaining Back-Up Tapes
Consider whether your client should change its standard back-up routines. Even if back-up tapes have not been specifically requested, consider whether they are called for by document requests (examine the opponent's definition of "documents"). Your client might consider removing back-up tapes from the recycling rotation, to preserve them for the litigation. Each back-up tape will provide a snapshot of the computer system on a given day. In addition, upon a specific request for back-up tapes, you may ultimately need to advise your client whether it should agree to produce them. If your client does not agree to produce such tapes, inform the other side, providing an explanation. If a compromise cannot be reached, ask the court to resolve the dispute.
In some cases, discovery of back-up tapes may be overly burdensome and/or unnecessary. Back-up tapes might be unavailable, or the volume of back-ups may be very large given the size of the company. The expense of restoring, searching, and extracting information from back-up tapes may be excessive compared to the size of the case. If your matter falls into one of those categories, you might pursue a strategy entailing an ongoing thorough search for, and preservation of, pertinent electronic data. Such an approach could minimize or eliminate the need for discovery of back-up tapes.
5. Secure Information; Establish its Authentication Foundation
You will need to lay the foundation for the authenticity of computer records you plan to introduce in evidence, namely that:
• the information has not been changed;
• it is a complete copy;
• it was made by a reliable copying method; and
• the media have been secured (i.e., the original copies have been preserved).
Whether electronic information was produced by your side or received from the other side, you should carefully track not only its sources, but also the methods by which it was obtained. Make write-protected copies of original data. Run anti-virus checks.244 Store originals in a secure place - i.e., a place of limited and controlled access – to avoid
243 Procter & Gamble, 179 F.R.D. at 632 (such failure "constitute[d] a sanctionable breach of P&G's discovery duties[;] P&G's own identification of these individuals belies any possible claim that P&G was not on notice that their e-mail communications would be relevant"). 244 Donald Searles, "Essentials of Electronic Discovery: What Every Practitioner Must Know," (Cal. CEB PowerPoint presentation March 2002).
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the possibility of data corruption via alteration or destruction.245 Be conscious of the impact of stipulated or court-ordered protective procedures.
6. Considerations Regarding Copying or Inspecting Hard Drives
If the other side wishes to search a hard drive or copy it, first consider whether it has a legitimate, well-founded basis for doing so:
• Is the request premature?
• Is there a particular reason for the search?
• Are there less burdensome ways to address the requesting party's concerns and its rationale for request?
If you and your client are amenable to such a search, try to agree on a protocol for the search process. Determine who will bear the costs of copying, searching, screening, and production. Use a screening procedure to protect non-responsive documents plus those protected by work product and/or attorney client privilege.246
IV. USING COMPUTER EXPERTS TO AID IN DISCOVERY AND TO ASSIST/SWAY COURT A. Benefits of Retaining a Computer Forensics Expert
If a large amount of electronic information is significant to a given case, consider early retention of a computer forensics firm to assist in the collection, searching and production of that information.247 Such a firm may help streamline the process and plan a strategy for discovery and production of electronic information. However, these experts can be costly. Therefore, you should assess your client's needs and resources when weighing the potential benefits against the anticipated significant costs. Moreover, as the quality of computer forensics firms varies greatly, you and your IT people should carefully scrutinize any such firm you – and thus your client – are contemplating retaining for the first time.
Expert testimony is also important if electronic discovery "meet and confer" negotiations reach an impasse. It is helpful in establishing or disproving whether the burdens of the requested discovery are outweighed by the benefits of obtaining information otherwise unavailable or in an inaccessible format. The lack of an expert may preclude
245 Id. 246 See, e.g., Playboy Enters., Inc. v. Welles, 60 F. Supp. 2d 1050, 1054-55 (S.D. Cal. 1999), aff'd in part and rev'd in part on other grounds, 279 F.3d 796 (9th Cir. 2002). 247 Some of the more well-known forensic services providers are (in alphabetical order): Guidance Software
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court enforcement of what might otherwise qualify as a valid discovery request.248 Electronic discovery presents numerous complex logistical issues. It also entails intrusion into, and risks to the integrity and stability of, the target computer systems. If the parties must seek court intervention on such issues, they often will wish to educate the court on the technical issues via expert testimony. The requesting party must be prepared to demonstrate the basis for seeking the information; why it is expected to yield otherwise unavailable, discoverable information; and how the risks of harm and inconvenience can be minimized.
Experts can unearth a lode of significant electronic information from a range of sources, including companies’ servers and individuals’ hard drives. For example, late last year, the ability to uncover definitive electronic evidence loomed large in Plaintiff’s voluntary dismissal, with prejudice, of a Massachusetts federal court case.249 In that eviction dispute between two corporations, Plaintiff had attached to its Complaint hard copies of a purported lease addendum and of an allegedly accompanying transmittal e- mail. In a related lease action between the same parties, Defendant had “filed an ex parte motion to preserve . . . and expedite the production of electronic records[, alleg[ing] that both the . .. [a]ddendum and [transmittal] e-mail were fabricated by [Plaintiff].”250 Accordingly, Defendant successfully contended “that it was necessary to allow [Defendant’s] consultants to create mirror images of [Plaintiff’s computer hard drives, back- up tapes and other data storage devices.”251
Once Defendant’s “consultants began mirror-imaging the electronic evidence,” Plaintiff saw the writing on the wall (or, more accurately, on the hard drives). Realizing that the expert analysis would prove his fabrication, Plaintiff’s President confessed. In the eviction action, Plaintiff’s counsel then disclosed to the court and to opposing counsel that: the addendum had not existed when the parties signed the lease; and Plaintiff’s President had “fabricated the [transmittal] e-mail by pasting most of a heading from an earlier, legitimate message and altering the subject matter line.”252 Plaintiff ultimately did not oppose Defendant’s motion to dismiss, in effect agreeing to voluntarily dismiss the baseless lawsuit. Defendant was awarded almost $25,000, to cover expert costs and attorney fees.
In the web server context, consider the summary judgment opposition evidence submitted by Plaintiffs in the ongoing Pharmatrak, Inc. Privacy Litigation, 220 F. Supp. 2d 4
248 Goord, 2002 U.S. Dist. LEXIS 8707, at *40-41. 249 Premier Homes and Land Corp. v. Cheswell, Inc., 240 F. Supp. 2d 97 (D. Mass. 2002) (awarding Defendant almost $25,000 in expert costs and attorney fees). 250 Premier, 240 F. Supp. 2d at 98. 251 Id. at 98. 252 Id. at 98, 100.
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(D. Mass. 2002).253 Pharmatrak is a consolidated class action alleging various federal statutory violations by pharmaceutical sites and by Pharmatrak, a company those sites had hired to monitor and analyze web traffic. The gravamen of the claims is that Defendants used cookies and web bugs to engage in surreptitious accessing of browsing habits and confidential health information from the hard drives of visitors to those sites. Pursuant to court order, Plaintiff’s expert, a computer scientist, examined Pharmatrak’ servers.
According to the expert’s subsequent declaration:
Pharmatrak’s logs “identified hundreds of people by name.” . . . Pharmatrak [had] collected information which included: names. Addresses, telephone numbers, dates of birth, sex, insurance status, medical conditions, education levels, and occupations. Pharmatrak also collected data about e-mail communications, including user names, e-mail addresses, and subject lines from e-mails.254
In addition, based on that collected information, the expert was not only able to build user profiles but also to “assert[s] that it would be possible to build detailed profiles of individuals using the data collected by Pharmatrak and matching it to ‘another data source, such as a telephone book.’”255
B. Relative Expertise of Opposing Experts
When deciding whether to compel electronic discovery, many a judge has come to expect an expert witness with sufficient computer expertise to provide a detailed explanation of the technical issues – such as how data might be obtained from a computer system and the likelihood that responsive information will be found.256 Thus, the prevailing party in an electronic discovery dispute may very well be the one whose expert who has
253 Pharmatrak, Inc. Privacy Litigation, 220 F. Supp. 2d 4 (D.Mass. 2002) (in seven consolidated class actions, dismissing Wiretap Act, Store Communications Act and Computer Fraud and Abuse Act claims), reversed in part, 2003 F.3d U.S. App. LEXIS 8598 (1st Cir. May 9, 2003) (reversing summary judgment grant as to Wiretap Act claim). 254 Pharmatrak, 220 F. Supp. 2d at 9. 255 Id. at 9. 256 New York State NOW v. Cuomo, 1998 U.S. Dist. LEXIS 10520, *9. (where "no [Plaintiffs'] expert testimony describing in detail what would have been required," rejecting as speculative Plaintiffs' prejudicial delay contention - namely that delayed notice of destruction of database had precluded them from being able to enlist computer experts to un-delete the information); Anti Monopoly, 1995 U.S. Dist. LEXIS 16355, *8. (if parties are not able to resolve dispute about burden involved in compiling electronic data into report, they should submit follow-up motion, including affidavits from computer personnel or computer experts). See also Fennell v. First Step Designs, Ltd., 83 F.3d 526 (1st Cir. 1996), also available at
49 better credentials and/or a more detailed explanation of his or her client's position.257
In a trade secret misappropriation dispute, the court focused on the opposing experts' relative credentials in assessing various sanction requests arising from Plaintiff's former employee's destruction of word processing files.258 Plaintiff had hired a technician, whose credentials, experience, and knowledge were inferior to those of Defendants' retained expert, who had a Ph.D. in computer science from Stanford University. Consequently, the court placed far greater weight on Defendant's expert's testimony when assessing, and ultimately denying, Plaintiff's request for a default judgment.259
Additionally, Plaintiff's computer technician had bungled the copying of the pertinent hard drive, which he was to search for deleted files. The court had ordered Defendants to produce Plaintiff's former employee's computer to allow copying of the hard drive to obtain all available information regarding the deleted files. To compound Plaintiff's relatively weak position, its technician's attempt to recapture deleted, but not yet been overwritten, files had been ineffective.260
On the merits of Plaintiff's spoliation sanctions motion, Plaintiff's "challenge to the adequacy of the computer record . . . being provided" was justified by the former employee's destruction of computer files.261 Yet, Plaintiff's expert's incompetence had ironically resulted in independent spoliation. Thus, the court awarded Plaintiff only ten percent of the fees and costs it incurred throughout the sanctions proceedings.262
257 One case in which the relative merits of conflicting experts were dispositive was Strasser v. Yalamanchi, 669 So. 2d 1142 (Fla. 4th Ct. App. 1996), review denied, 805 So. 2d 810 (Fla. 2001). There, Plaintiff sought information previously purged from [D]efendant's computer system. Plaintiff submitted an affidavit of a CPA without any particular computer expertise. The CPA averred that it was "possible" to retrieve purged information. In contrast, Defendant's expert, a computer engineer, investigated the pertinent hardware and software, including the operation of the purging function. He examined the computer system for purged files, finding none. Weighing the competing experts' testimony, the court concluded that Plaintiff had failed to establish likelihood that the purged documents could be retrieved. Id. at 1145. See also Alexander v. FBI, 188 F.R.D. 111 (D.D.C. 1998). 258 Gates Rubber Co. v. Bando Chemical Indus., 167 F.R.D. 90, 110-11 (D. Colo. 1996), also available at
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V. CONCLUSION
As does its companion paper on efiling,263 this paper raises more questions than it answers. Just how far must each side go to preserve evidence? How far may each go to hunt for evidence? Courts are grappling with these issues, though there are not yet clear- cut rules with broad applicability. Given today's burgeoning computer forensics capabilities, and the increasing volume of electronic data being generated,264 the breadth of electronic discovery - and of the legal issues it implicates - can be overwhelming.
Reciprocity can act as a check on unreasonable and premature requests for intensive electronic discovery. When the parties are both businesses and/or the electronic discovery burdens weigh similarly on each side, there is an element of mutually assured destruction.
Be mindful that the law is constantly evolving and there are few absolute rules. But here are some suggestions to help keep your client in synch with electronic discovery rights and obligations:
(a) early on, inform the other side of the electronic information discovery you will be seeking and request that such information be preserved;
(b) promptly respond to a similar request from the other side, and inform it of any questions or objections;
(c) engage in a good faith dialogue with the other side, aiming to reach an early consensus about the desired scope of electronic discovery and the relevant expectations of each side;
(d) do not wait for a document request or a preservation letter or order; at the beginning of a dispute or case, start the process of searching for and collecting electronic information;
(e) ensure that your client and its employees are aware of the obligation to preserve evidence and the consequences of destruction, and advise them to communicate the attendant duties to the appropriate people;
(f) in responding to discovery requests and conducting searches, ensure your discovery efforts are above reproach; and
(g) choose your battles wisely; if you must seek the court's intervention, provide the court with all the information and explanation (including a well- credentialed expert) it will need to consider the salient issue(s).
263 William A. Fenwick & Robert D. Brownstone, “Efiling,” 19 SANTA CLARA COMPUTER & HIGH TECH L.J. 181 (2002), available at
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The authors believe that, because of its volume, electronic information eventually will result in significant changes in discovery rules and procedures. Both the federal and state court systems are currently exploring the discovery implications of electronic information. At the federal level, the Discovery Subcommittee of the United States Advisory Committee on Civil Rules is assessing whether the of electronic information warrants proposed amendments to the Federal Rules of Civil Procedure. The Subcommittee’s inquiry regarding the impact of computer-based materials is being coordinated by Special Consultant Richard L. Marcus, a Professor at UC Hastings College of Law.265 In addition, at the state level, a National Center for State Courts (NCSC) project has been approved and funded. The Task Force for the NCSC project is being formed by the appointed project director Mary Durkin.266
265 Richard L. Marcus, “Is There a Need for Rule Changes to Address Distinctive Features of Discovery of Electronic Materials?” (Sep. 2002). 266 The National Center for State Courts (NCSC)
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